Treminio v. Crowley Maritime Corporation

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

VANESSA TREMINIO,

Plaintiff,

v.

3:22-cv-00174-CRK-PDB

CROWLEY MARITIME

CORPORATION, and JUAN EMILIO

BLANCO,

Defendants.

INTRODUCTION

Before the Court are two motions in limine to exclude evidence. Both motions

seek to exclude evidence that Defendant Crowley Maritime Corporation (“Crowley”)

and Defendant Juan Emilio Blanco (“Blanco”) (collectively “Defendants”) claim to be

inadmissible. See [Crowley’s] Mot. In Lim. Excl. Ev. & Inc. Mem. L. at 1–2, Jan. 2,

2024, ECF No. 140 (“Crowley Mot.”); [Blanco’s] Mot. In Lim. & Supp. Mem. L. at 1,

Jan. 2, 2024, ECF No. 141 (“Blanco Mot.”). For the following reasons, the motions

are granted in part and denied in part.

BACKGROUND

Plaintiff Vanessa Treminio (“Plaintiff”) sued Crowley and Blanco, alleging

violations of 18 U.S.C. §§ 1589, 1591, and 1595 of the Trafficking Victims Protection

Reauthorization Act (“TVPRA”) against Crowley for sex trafficking and forced labor,

and violations of the TVPRA for sex trafficking and state tort claims against Blanco.1

See Am. Compl. at ¶¶ 101–69, Mar. 30, 2022, ECF No. 14. By its motion, Crowley

requests exclusion of the following from admission at trial under Federal Rules of

Evidence 402, 403, 404, and 408: (1) a settlement offer by Crowley to Plaintiff when

she was terminated from her position at Crowley; (2) complaints against third-party

supervisors, not involving Blanco, by Plaintiff’s colleagues in Crowley’s El Salvador

office; (3) evidence of Blanco’s conduct towards other employees which Crowley refers

to as “me too” evidence; and (4) any characterization that Plaintiff’s termination for

performance was “pretextual” or a “pretext.” Crowley Mot. at 2. Plaintiff opposes

Crowley’s motion, arguing that the disputed evidence is admissible because: (1) the

settlement offer by Crowley is relevant to Crowley’s affirmative defenses; (2) the

complaints against third-party managers are relevant to and probative of multiple

elements of Plaintiff’s TVPRA claims; (3) evidence of Blanco’s conduct towards other

employees is probative of both Plaintiff’s state of mind and Crowley’s notice of

Blanco’s conduct and therefore relevant to Plaintiff’s TVPRA claims; and (4)

1 The Trafficking and Victim’s Protection Act (“TVPA”) has been reauthorized and

amended numerous times since its implementation in 2000. See Human Trafficking:

Key Legislation, U.S. Dep’t of Just. (Aug. 23, 2023),

https://www.justice.gov/humantrafficking/key-

legislation#:~:text=The%20TVPRA%202008%20expanded%20the,potential%20victi

ms%20of%20human%20trafficking (last visited Jan. 27, 2024). In 2003, Congress

reauthorized and amended the TVPA with the Trafficking Victims Protection

Reauthorization Act of 2003, which refined the criminal provisions against trafficking

and included a civil remedy actionable by victims against their traffickers in federal

court. See id.; see also Pub. L. No. 108-193. Because Plaintiff’s sex trafficking and

forced labor claims rest upon the civil action remedy created by the 2003 amendment,

see Am. Compl. ¶¶ 102, 115, 155, the applicable statute will be referred to as the

Trafficking and Victims Protection Reauthorization Act (“TVPRA”).

“Plaintiff’s termination was a direct result of her attempt to mitigate her damages

and can reasonably be characterized as ‘pretextual.’” Pl.’s Resp. Opp’n [Crowley Mot.]

at 1–15, Jan. 16, 2024, ECF No. 154 (“Pl. Resp. (Crowley)”).

Blanco’s motion seeks to exclude: (1) third-party testimony of “bad acts”

previously committed by Blanco; (2) third-party testimony of allegations of sexual

assault, harassment, or misconduct by Blanco against Wendy Ponce Fecie (“Ponce”);

and (3) Blanca Hernandez’s (“Hernandez”) testimony concerning her psychiatric

treatment, medication and financial status while employed by Crowley. Blanco Mot.

at 2–11. Plaintiff argues the evidence is admissible because: (1) third-party testimony

regarding Blanco’s previous “bad acts” is relevant to establishing a modus operandi

under the TVPRA; (2) third-party testimony of the allegations surrounding Blanco

and Ponce are relevant to Blanco’s purported modus operandi; and (3) Hernandez’s

testimony of her psychiatric treatment, medication, and financial status during

employment at Crowley is probative Defendants’ knowledge elements of Plaintiff’s

TVPRA claims. Pl.’s Resp. Opp’n [Blanco Mot.] at 2–10, January 16, 2024, ECF No.

155 (“Pl. Resp. (Blanco)”).

DISCUSSION

I. Settlement Offer By Crowley

A. Rule 401 and 408

The parties dispute whether evidence of a settlement offer by Crowley to

Plaintiff—both over email and in person—is admissible under Federal Rules of

Evidence 401 and 408. Crowley Mot. at 3–8; Pl. Resp. (Crowley) at 2–5; see Dec. 16,

2020 Email from Pl. to Claudia Moran at 1, Dec. 16, 2020, ECF No. 140-2 (“Dec. 16,

2020 Email”); Dec. 18, 2020 Email from Pl. to Claudia Moran at 1, Dec. 18, 2020, ECF

No. 140-3; Dec. 28, 2020 Email String, Dec. 28, 2020, ECF No. 140-4. A motion in

limine moves the Court “to exclude anticipated prejudicial evidence before the

evidence is actually offered.” Luce v. United States, 469 U.S. 38, 40 n.2 (1984); see

Barfield v. CSX Transportation, Inc., No. 3:14-CV-1031-J-PDB, 2017 WL 662012, at

*3 (M.D. Fla. Feb. 17, 2017). The party moving the Court maintains the burden of

demonstrating the inadmissibility of the evidence on any theory it believes relevant.

United States v. Gonzalez, 718 F. Supp. 2d 1341, 1345 (S.D. Fla. 2010); Barfield, 2017

WL 662012 at *3.

Evidence is relevant if it “has any tendency to make a fact more or less probable

than it would be without the evidence[] and the fact is of consequence in determining

the action.” Fed. R. Evid. 401. Rule 408 prohibits evidence of an offer or negotiation

to settle a claim to prove or disprove liability of one of the parties. Fed. R. Evid.

408(a). However, evidence of a settlement proposal or negotiation is admissible for

other purposes, including, but not limited to, demonstrating bias, prejudice of a

witness, and undue delay. Fed. R. Evid. 408(b); see, e.g., CNA Fin. Corp. v. Brown,

162 F.3d 1334, 1338 (11th Cir. 1998) (“[Rule 408] explicitly permits the introduction

of [settlement] offers for other purposes”); United States v. Pendergraft, 297 F.3d

1198, 1211 n.8 (11th Cir. 2002) (stating admission of compromise offers was proper

under Rule 408 because it evinced cooperation by the defendants); Cassino v.

Reichhold Chemicals, Inc., 817 F.2d 1338, 1342–43 (9th Cir. 1987) (affirming

admission of settlement agreements in an ADEA case because they were probative of

discrimination and tended to show coercion); Urico v. Parnell Oil Co., 708 F.2d 852,

854–55 (1st Cir. 1983) (allowing admission of settlement agreement to counter the

defendant’s argument that the plaintiff failed to mitigate damages); Kraft v. St. John

Lutheran Church of Seward, Neb., 414 F.3d 943, 947 (8th Cir. 2005) (holding the trial

court’s admission of settlement negotiations proper because it proved the plaintiff’s

knowledge of a causal connection between his injuries and the alleged abuse that was

the basis of the tort action).

Here, introduction of the settlement proposal might be relevant under 401 and

admissible under Rule 408. Plaintiff does not seek to offer the discussions to support

her claim that Crowley is liable for violations of the TVPRA. Pl. Resp. (Crowley) at

4–5. Rather, Plaintiff offers the proposal to refute two of Crowley’s affirmative

defenses: estoppel and failure to mitigate damages.2 See id. at 4; Crowley Defenses

2 Crowley’s claims estoppel as an affirmative defense to Plaintiff’s claims in

paragraph nine of its affirmative defenses:

Plaintiff’s claims against Crowley are barred, in whole or in part, by the

doctrines of estoppel and/or estoppel by silence because Plaintiff

continued her employment with Crowley following the alleged events

and failed to bring this cause of action until years later and after her

termination from employment.

[Crowley’s] Affirm. Defenses at ¶ 9, Jan. 19, 2023, ECF No. 38 (“Crowley Defenses”).

Crowley also claims failure to mitigate damages as an affirmative defense in

paragraph ten:

Plaintiff failed to mitigate any damage or loss that she may have

suffered because of the acts and omissions alleged in the Amended

Complaint. Plaintiff further failed to mitigate her damages by failing to

obtain reasonable and necessary medical treatment and/or by failing to

follow the medical recommendations of her treating healthcare

at ¶¶ 9–10. More specifically, Crowley states in its Answer that Plaintiff’s claims are

barred by estoppel because “Plaintiff continued her employment with Crowley

following the alleged events and failed to bring this cause of action until years after,”

and that “Plaintiff further failed to mitigate her damages by failing to obtain

reasonable and necessary medical treatment . . . .” Crowley Defenses at ¶¶ 9–10. The

settlement correspondences contain evidence from which a jury could reasonably

infer that Plaintiff took steps to mitigate the alleged damages caused by Defendants

through medical treatment, and that Crowley was aware of those efforts. See Dec.

16, 2020 Email at 1. Although parts of the communications are redacted, Plaintiff

specifically requested Crowley to “intervene and see how the company can help [her]

with the expenses for medication and to be able to continue [her] psychological

treatment.” Id. Thus, the communications between Plaintiff and Crowley could be

probative of Crowley’s affirmative defenses rather than Crowley’s liability. Because

admission of the evidence could be relevant to serving this other purpose, exclusion

under Rules 401 and 408 is improper at this time. See Urico, 708 F.2d at 854–55.

B. Rule 403

The parties next dispute any prejudicial effect Crowley might suffer by

introducing evidence concerning the settlement proposal. Crowley Mot. at 7–8; Pl.

Resp. (Crowley) at 5–6. Relevant evidence may be excluded if its “probative value is

substantially outweighed” by the danger of unfair prejudice, confusing the issues, or

providers. Any recovery made by Plaintiff should be barred or reduced,

accordingly.

Id. at ¶ 10.

misleading the jury. Fed. R. Evid. 403. The Court has broad discretion to weigh the

probative value against a danger within Rule 403 because of its unique ability “to

view witnesses and assess the impact of evidence.” United States v. King, 713 F.2d

627, 631 (11th Cir. 1983); United States v. Mitrovic, 890 F.3d 1217, 1226 (11th Cir.

2018) (“As the Supreme Court explained ‘the Constitution leaves to the judges who

must make these [admissibility] decisions wide latitude to exclude evidence that . . .

poses an undue risk of . . . confusion of the issues’” (quoting Crane v. Kentucky, 476

U.S. 683, 688–89 (1986))). However, because there are circumstances where

probative evidence will nonetheless be excluded, Rule 403 “is an extraordinary

remedy that must be used sparingly.” United States v. McGregor, 960 F.3d 1319,

1324 (11th Cir. 2020) (citing United States v. Cross, 928 F.2d 1030, 1051 (11th Cir.

1991)); King, 713 F.2d at 631.

With respect to unfair prejudice, Rule 403 is “limited to excluding matter of

scant or cumulative probative force, dragged in by the heels for the sake of its

prejudicial effect.” United States v. Meester, 762 F.2d 867, 875 (11th Cir.1985)

(internal quotations and citations omitted). Unfair prejudice is often embodied by “a

tendency to suggest decision on an improper basis, commonly, though not necessarily,

an emotional one.” Old Chief v. United States, 519 U.S. 172, 180 (1997) (internal

quotations and citations omitted). The reviewing court must view the contested

evidence in a lens favoring admission, “maximizing its probative value and

minimizing its undue prejudicial impact.” McGregor, 960 F.3d at 1324 (citing Aycock

v. R.J. Reynolds Tobacco Co., 769 F.3d 1063, 1069 (11th Cir. 2014)).

Here, the probative value of the settlement communications is not

substantially outweighed by its potential prejudicial effect. Crowley claims that it

will suffer substantial prejudice because Plaintiff was only offered a settlement in

compliance with El Salvador law. Crowley Mot. at 8. The Court agrees that the

settlement amounts contained in the communications are not relevant to Plaintiff’s

suit and could substantially prejudice Crowley, and therefore must be excluded.

Accordingly, should Plaintiff seek to admit into evidence of the settlement

negotiations, she will redact any references to any amounts. However, Crowley fails

to explain in any further detail what prejudice it would suffer.

Crowley’s affirmative defense that Plaintiff failed to mitigate her own damages

and continued employment at Crowley precludes exclusion of evidence of the offer

without further support or context. Given Crowley’s affirmative defense, the Court

cannot say that there are no circumstances under which evidence of the settlement

offer would be admissible. Thus, exclusion of the negotiations would be improper

without additional context. Accordingly, Crowley’s request to exclude evidence of

settlement negotiations at Plaintiff’s termination is denied at this time; Crowley is

free to renew its objection at trial in proper context. Arthrex, Inc. v. Parcus Med.,

LLC, No. 2:10-CV-151-FTM-38, 2014 WL 2700802, at *1 (M.D. Fla. June 13, 2014)

(“the district judge is free, in exercise of sound judicial discretion, to alter a previous

in limine ruling”). Additionally, any reference to monetary amounts within such

negotiations will be redacted or excluded.

II. Employee Complaints Against Third-Party Management in El

Salvador

A. Rule 401 and 403

The parties dispute the relevancy of complaints by Crowley employees against

Crowley Inland Department supervisors Mario Granada (“Granada”) and Jose Lopez

(“Lopez”).3 Crowley Mot. at 8; Pl. Mot. (Crowley) at 6. Specifically, the parties contest

whether the complaints reported in the “Trip Report” by Lenny Campos and the email

by Senobia Matute titled “Notes from Heitzel Monroy’s Meeting with Trucking Area,”

are relevant to Plaintiff’s claims. Crowley Mot. at 8; Pl. Resp. (Crowley) at 6; see

DFTS RSM SAL Team Trip Rep. at 1–2, May 1, 2018, ECF No. 140-5 (“Trip Rep.”);

May 2, 2018 Email at 1–2, May 2, 2018, ECF No. 140-6 (“May 2, 2018 Email”). The

complaints contain numerous details of Granada and Lopez’s treatment of Inland

Department employees, one which pre-dates or coincides with the timing of Plaintiff’s

claims and others of which occurred or were reported after Plaintiff’s allegations. See

Trip Rep. at 1–2; May 2, 2018 Email at 1–2.

Evidence is relevant if it has a tendency to make a fact of consequence to a

claim more or less probable. Fed. R. Evid. 401. Relevant evidence is nonetheless

excludable if its probative value is substantially outweighed by its danger of unfair

prejudice, confusion of the issues, or potential to mislead the jury. Fed. R. Evid. 403.

The moving party “has the burden of demonstrating that the evidence is inadmissible

3 While employed by Crowley, Plaintiff worked for an El Salvador team called the

Inland Department, supervised by Blanco during his employment at Crowley. Am.

Compl. at ¶ 11; [Crowley] Answer at ¶ 11, Jan. 19, 2023, ECF No. 38.

on any relevant ground.” Barfield, 2017 WL 662012, at *3 (citing Gonzalez, 718 F.

Supp. 2d at 1345). Most of the allegations in the reports are either undated or clearly

after the accrual of Plaintiff’s causes of action. See Trip Rep. at 1–2; May 2, 2018

Email at 1–2. Allegations of mistreatment by Crowley supervisors occurring after

Plaintiff’s claims would appear to have no relevance to Crowley’s notice or knowledge

of Plaintiff’s allegations.

Nonetheless, Crowley fails to demonstrate that the evidence in the reports is

inadmissible on any relevant ground. Certain statements may be probative of facts

relating to Crowley’s affirmative defenses. For example, statements in the Trip

Report refer to “retaliation” and Human Resources disregarding complaints, which

would be probative of facts relating to Crowley’s affirmative defense of estoppel. Trip

Rep. at 2. Another statement in the email from Senobia Matute exhibits interactions

between Blanco and Plaintiff prior to Blanco’s termination. Specifically, Item 26 of

the May 2, 2018 Email to Tiffanny King and Robert Weist states:

The team said Jose Lopez does not have human sense. They share a

situation were [sic] [Plaintiff] and Luis were in Puerto Rico and had no

money. Luis wrote to Juan Blanco, copying Jose Lopez, telling them

they had no more money. [Blanco] answered if he wanted money to go

drink alcohol with [Plaintiff] and [Lopez] did not say anything.

May 2, 2018 Email at 2. This statement is relevant to Plaintiff’s state of mind and

whether she feared retaliation from Crowley or believed any complaints would be

futile, directly involving Crowley’s affirmative defense of estoppel, and more

specifically that Plaintiff continued her employment at the company. See Crowley

Defenses at ¶ 9. These examples tend to elucidate Plaintiff’s belief that she might

suffer harm, retaliation, or neglect from her supervisors if she took steps to officially

report Blanco’s behavior. Indeed, Item 26 and the rest of the reports are illustrative

of the culture at Crowley, a recurring theme in Plaintiff’s lawsuit. Plaintiff’s beliefs

are thus relevant to her continued employment at Crowley, and an assumption that

any report to upper management would be futile. Additionally, the probative value

of these statements is not substantially outweighed by any of the dangers posed in

Rule 403 to warrant exclusion. Accordingly, evidence contained in the “Trip Report”

by Lenny Campos and the email by Senobia Matute titled “Notes from Heitzel

Monroy’s Meeting with Trucking Area,” are relevant to Plaintiff’s claims. See Trip

Rep. at 1–4; May 2, 2018 Email at 1–2. The Court may determine that certain

constraints and limitations are warranted at trial, but that can be accomplished with

a proper objection by the parties at that time. See Harris v. Wingo, No. 2:18-CV-17-

FTM-29MRM, 2021 WL 5028201, at *1 (M.D. Fla. Oct. 29, 2021), aff'd, No. 22-10905,

2023 WL 3221640 (11th Cir. May 3, 2023).

B. Hearsay

Crowley argues that evidence of the complaints against Granada and Lopez

are precluded under Rule 802 as inadmissible hearsay. Crowley Mot. at 10. The

Federal Rules of Evidence define hearsay as an out of court statement introduced to

prove the truth of the matter asserted. Fed. R. Evid. 801. Rule 802 prohibits hearsay

unless otherwise allowed by statute, the Federal Rules of Evidence, or any other rule

prescribed by the Supreme Court. Fed. R. Evid. 802. The rules contain certain

exceptions to the prohibition of hearsay under Rule 803, thus allowing out of court

statements to prove their truth. See generally Fed. R. Evid. 803. Under Rule 803(6),

a record of an act or event is admissible as an exception to the rule against hearsay

if (A) the record was made at or near the time by someone with knowledge; (B) the

record was kept in the course of a regular business activity; (C) creation of the record

was regular practice of that activity; (D) the previous conditions are shown or certified

by the testimony of the custodian or another qualified witness; and (E) the record is

trustworthy. Fed. R. Evid. 803(6).

Here, the reports are subject to an exception to the rule against hearsay under

Rule 803(6) as records of regularly conducted activity. The reports: (A) were recorded

by and reported to Crowley employees with first-hand knowledge at or near the time

of the alleged incidents; (B) were kept in the ordinary course of Crowley’s Human

Resources and Internal Audit departments concerning investigations related to

Crowley’s Ethics Point system; (C) were routinely made in regular practice with

Crowley’s Human Resources Department policies in response to employee

complaints; (D) were shown to satisfy these conditions by the testimony of Tiffanny

King, a Human Resources professional at Crowley who was a recipient of the reports;

and (E) have not been alleged to be untrustworthy by Defendants. See Fed. R. Evid.

803(6); Dep. Tiffanny King at 96–97, 142–49, 151, 157, 161–63, 215–221, 238–241,

May 17, 2023, ECF No. 89-3 (“King Dep.”); Trip Rep. at 1–4; May 2, 2018 Email at 1–

2. Therefore, admission of the reports is proper at this time. Accordingly, Crowley’s

motion is denied; but Crowley is free to renew any objection to the reports at trial in

proper context.

III. Blanco’s Conduct Towards Other Employees

A. Rule 404

The parties dispute whether evidence of Blanco’s acts of alleged sexual

harassment and assault of others are admissible at trial, including first-hand

experiences by employees under Blanco’s supervision and Ponce’s Ethics Point

complaints and related testimony.4 Crowley Mot. at 11; Blanco Mot. at 3; Pl. Resp.

(Crowley) at 9; Pl. Resp. (Blanco) at 2. Crowley and Blanco anticipate Plaintiff will

call witnesses to provide testimony that Blanco “allegedly sexually harassed and/or

made sexually explicit statements to and about various employees.” Crowley Mot. at

13; see Blanco Mot. at 5. Crowley and Blanco predict Plaintiff will call several current

and former Crowley employees, including Hernandez, Lya Santamaria, Elsa Castro,

and Ponce, to present their knowledge of and experience with Blanco to the jury.

Crowley Mot. at 11–18; Blanco Mot. at 2–9. Additionally, Crowley seeks to limit

Ponce’s testimony to the information contained in the Ethics Point reports that

launched Crowley’s investigation into Blanco, and Blanco moves to strike her

testimony altogether. Crowley Mot. at 19–22; Blanco Mot. at 9.

1. Evidence Offered for Other Purpose

Rule 404(a) prohibits evidence of a person’s character or character trait to show

that the person acted consistent with that character or character trait on a particular

4 Ethics Point is a hotline that Crowley employees can call or access online to submit

grievances against other Crowley employees to the Human Resources Department.

King Dep. at 96–100. Members of Human Resources then investigate filed reports

and recommend corrective action to supervising employees. Id. at 104–15.

occasion. Fed. R. Evid. 404(a)(1). Similarly, Rule 404(b) prohibits evidence of “any

other crime, wrong, or act” to prove a person’s character and that the person acted in

accordance with that character on a particular occasion. Fed. R. Evid. 404(b)(1).

However, Rule 404(b)(2) permits evidence of other crimes, wrongs, or acts for other

purposes, including to show “motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).

Admission of evidence for another purpose under Rule 404(b)(2) is subject to a

three-pronged test. See United States v. Chavez, 204 F.3d 1305, 1317 (11th Cir. 2000)

(explaining test); Williams v. Asplundh Tree Expert Co., No. 3:05-CV-479-J-33MCR,

2006 WL 2868923, at *2 n.1 (M.D. Fla. Oct. 6, 2006) (acknowledging that although

Chavez was a criminal case, the test under 404(b)(2) is the same in the civil context).

To be admissible, evidence must “(1) be relevant to one of the enumerated issues and

not to the defendant's character; (2) the prior act must be proved sufficiently to permit

a jury determination that the defendant committed the act; and (3) [satisfy Rule

403].” Chavez, 204 F.3d at 1317; Williams, 2006 WL 2868923, at *2.

Here, a blanket exclusion on the evidence is inappropriate. The testimony

regarding Blanco’s conduct is relevant to issues other than Blanco’s character,

including whether Crowley had notice of Blanco’s conduct and Crowley’s affirmative

defense of estoppel. Plaintiff’s ability to show Crowley’s awareness of an employee’s

misconduct, and subsequent inaction to discipline the employee or remedy the

misconduct, implicates Crowley’s mens rea in Plaintiff’s TVPRA claims. See 18

U.S.C. §§ 1589, 1591. Moreover, Blanco’s conduct is relevant to Crowley’s defense

that Plaintiff maintained employment despite her allegations, as it might show that

Plaintiff’s actions following the alleged incident were reasonable in light of the

experiences of others who had similar encounters. The witnesses will be able to

testify to their firsthand experiences with Blanco, which in turn will be submitted to

the jury for credibility determinations. These credibility determinations pertain to

matters of weight, rather than admissibility. See Fed. R. Evid. 602 (“A witness may

testify to a matter only if evidence is introduced sufficient to support a finding that

the witness has personal knowledge of the matter. Evidence to prove personal

knowledge may consist of the witness’s own testimony”).

However, the anticipated testimony offered for notice should be limited to

Blanco’s alleged misconduct toward Inland Department employees under his

supervision prior to Plaintiff’s allegations. Such testimony directly pertains to

whether Crowley was aware of Blanco’s conduct as relating to Plaintiff. Any acts

subsequent to Plaintiff’s allegations are thus irrelevant for the purpose of exhibiting

Crowley’s notice. Furthermore, the details of Ponce’s encounters with Blanco in the

Ethics Point reports are permitted to establish Blanco’s modus operandi, as discussed

below, but not permitted to show that Crowley had notice of Blanco’s actions since

Ponce’s allegations post-date Plaintiff’s claims.

Moreover, Rule 403 does not warrant exclusion of evidence exhibiting Blanco’s

conduct. Crowley contends that admission of Blanco’s conduct towards other

employees would be improper because it would inflame the jury and improperly

influence its decision. Crowley Mot. At 18. Crowley also alleges that the testimony

would result in a series of “mini trials” that would confuse the issues and mislead the

jury as to the proper subject of the trial. Id. at 18.

Here, Crowley’s arguments fail to persuade the Court that the prejudice

Crowley might suffer substantially outweighs the probative value of evidence

concerning Blanco’s conduct. The testimony tends to show that Crowley had notice

of Blanco’s conduct. The evidence is also probative of reasons for Plaintiff’s continued

employment at Crowley—including her belief that Crowley would not remedy the

environment fostered by Blanco—and thus Crowley’s affirmative defense of estoppel.

Given the nature of Plaintiff’s claims, the probative effect of the anticipated testimony

is not substantially outweighed by any prejudice Crowley might suffer. Crowley is

free to renew its objection at trial, if trial developments give more support for such

objection. Arthrex, Inc., 2014 WL 2700802, at *1 (stating that the trial judge can

alter previous rulings in limine). Moreover, the Court can mitigate any potential

juror confusion through a limiting instruction. See Ebanks v. Great Lakes Dredge &

Dock Co., 688 F.2d 716, 723 (11th Cir. 1982) (holding that limiting instruction can

cure deficiencies in Rule 403 determinations); Gilson v. Indaglo, Inc., No. 6:12-CV-

1423-ORL-I8GJK, 2013 WL 12394255, at *4 (M.D. Fla. Dec. 19, 2013) (stating that

the defendant’s “concerns under Rule 403 may be adequately addressed by

appropriate, limiting instructions given to the jury at trial”). There is a presumption

that jurors can be relied upon to follow curative directives at the Court’s instruction.

See Samia v. United States, 599 U.S. 635, 646 (2023) (“[limiting instruction’s]

historical evidentiary practice is in accord with the law's broader assumption that

jurors can be relied upon to follow the trial judge's instructions”). Thus, evidence of

Blanco’s conduct is not precluded under Rule 404 against Crowley.

2. Blanco’s Modus Operandi

Blanco argues that Ponce’s Ethics Point reports and any testimony relating to

her allegations and pending lawsuit are inadmissible. Blanco Mot. at 6. Plaintiff

counters that the testimony is relevant to proving Blanco’s modus operandi, and thus

Blanco’s mens rea, for her claims under the TVPRA. Pl. Resp. (Blanco) at 2–6. Here,

Ponce’s testimony is relevant.

Under the TVPRA, courts have allowed a showing of a defendant’s modus

operandi to be sufficient for establishing knowledge. See Ardolf v. Weber, 332 F.R.D.

467, 475 (S.D.N.Y. 2019) (ruling that establishing the defendant’s modus operandi

was a permitted method to demonstrate knowledge under the TVPRA); United States

v. Todd, 627 F.3d 329, 334 (9th Cir. 2010) (“What the [TVPRA] requires is that the

defendant know in the sense of being aware of an established modus operandi that

will in the future cause a person to engage in prostitution”); Boyce v. Weber, No. 19-

CV-3825 (JMF), 2021 WL 2821154, at *4–6 (S.D.N.Y. July 7, 2021) (permitting modus

operandi to establish knowledge under the TVPRA). Courts have also found that a

defendant’s actions subsequent to the events charged in a suit were permitted to show

the defendant had a modus operandi. Turner v. United States, 426 F.2d 480, 483–84

(6th Cir. 1970) (allowing evidence of stolen automobiles after the charged theft to

prove defendant’s modus operandi); United States v. Goodwin, 492 F.2d 1141, 1154

(5th Cir. 1974) (articulating that a subsequent incident is permitted to show modus

operandi if the subsequent act “bears such a high degree of similarity as to mark it

as the handiwork of the accused”).

The allegations contained in Ponce’s Ethics Point reports are similar to

Plaintiff’s case. In both cases, Blanco and the complainant were in Jacksonville,

Florida for company training within months of each other. See Ethics Point No. 297

at 2–3, Jan. 23, 2018, ECF No. 140-8; Am. Compl. at ¶ 40. Both instances allegedly

occurred in the evening after Blanco had consumed multiple alcoholic drinks. Ethics

Point No. 297 at 2; Am. Compl. at ¶ 42. In both cases, Blanco allegedly proceeded to

act in an inappropriate and unwelcomed manner to both complainants. Ethics Point

No. 297 at 2; Am. Compl. at ¶ 44. Moreover, both Plaintiff and Ponce alleged Blanco

groped them at a certain point in their working relationships. See Crowley Mot. at

20; Blanco Mot. at 9; Pl. Resp. (Crowley) at 14; Pl. Resp. (Blanco) at 6; Am. Compl. at

¶ 23.

The geographical, temporal, and behavioral similarities between the events

are sufficient to submit for jury determination of whether Blanco had an established

modus operandi. See Acevedo, 860 F.App’x at 610 (stressing temporal and

geographical proximity in the similarity of two acts); United States v. Stubbins, 877

F.2d 42, 44 (11th Cir. 1989) (allowing evidence that the extrinsic act and the charged

offense occurred at the same address); Boyce, 2021 WL 2821154, at *5 (allowing

evidence to establish the defendant’s modus operandi where inappropriate touching

alleged by the victims was similar in temporal, geographic, and behavioral

proximity). Moreover, the Court cannot say at this time that the prejudicial effect of

Ponce’s Ethics Point reports and related testimony substantially outweigh its

probative nature given the similarities of the allegations. Blanco is free to renew his

objections at trial in proper context. See Barfield, 2017 WL 662012, at *3.

Accordingly, Ponce’s Ethics Point reports and testimony of her allegations are not

excluded under Rule 404 because they are relevant to Blanco’s modus operandi.

3. Hearsay

The parties dispute whether testimony of Blanco’s conduct and Ponce’s Ethics

Point reports are prohibited as hearsay under Rule 802. Crowley Mot. at 11–12; Pl.

Resp. (Crowley) at 9–10. As previously discussed, the Federal Rules of Evidence

contain certain exceptions to the rule against hearsay. Fed. R. Evid. 802; see

generally Fed. R. Evid. 803. Under Rule 803(6), a record of an act or event is

admissible as an exception if (A) the record was made at or near the time by someone

with knowledge; (B) the record was kept in the course of a regular business activity;

(C) creation of the record was regular practice of that activity; (D) the previous

conditions are shown or certified by the testimony of the custodian or another

qualified witness; and (E) the record is trustworthy. Fed. R. Evid. 803(6). To satisfy

requirement (D), it is sufficient that the qualified witness can testify that the records

generally meet the conditions of the exception rather than having any personal

knowledge of the specific circumstances of the record. In re Int'l Mgmt. Assocs., LLC,

781 F.3d 1262, 1268 (11th Cir. 2015) (“The testifying witness does not need firsthand

knowledge of the contents of the records, of their authors, or even of their preparation

[to satisfy Rule 803(6)(D)]”); United States v. Butler, 635 F. App'x 585, 589 (11th Cir.

2015) (admitting cellphone records where a third-party contractor familiar with

phone records in general certified the records at issue satisfied Rule 803(6)).

Here, testimony of Blanco’s conduct is not subject to exclusions of Rule 802.

First, the statements as they relate to Crowley’s defense of estoppel are not offered

for their truth. Rather, they are relevant to whether Crowley had notice of Blanco’s

conduct, and also Plaintiff’s belief that reporting Blanco’s behavior or seeking other

employment was futile. The statements are not allowed to prove that Blanco

committed acts in the past or that he committed the acts alleged in the instant suit.

Accordingly, there is no hearsay concern with respect to Crowley’s notice of Blanco’s

conduct and its defense of estoppel.

Second, Ponce’s Ethics Point reports are admissible as records of a regularly

conducted activity. See Fed. R. Evid. 803(6). Here, the reports fall within the

constraints of Rule 803(6), as: (A) the reports were made at or near the time of Ponce’s

allegations by Ponce; (B) the reports was kept in Crowley’s Human Resources regular

practice of filing internal complaints against Crowley employees; (C) creation of the

complaints were within the regular practice of Crowley’s Human Resources

Department; (D) the reports were shown to satisfy these conditions by the testimony

of Tiffanny King; and (E) nothing offered by the Defendants indicates a lack of

trustworthiness. See Fed. R. Evid. 803(6); King Dep. at 96–97, 142–49, 151, 157,

161–63, 215–221; Ethics Point No. 297 at 2. That King only had knowledge of Human

Resources’ general practice of creating Ethics Point reports in response to employee

complaints is sufficient to demonstrate the reports satisfy Rule 803(6). See In re Int'l

Mgmt. Assocs., LLC, 781 F.3d at 1268; Butler, 635 F. App'x at 589.

Additionally, Ponce’s first-hand testimony of her allegations against Blanco do

not constitute hearsay. Indeed, Rule 602 permits Ponce to testify to matters of which

she has personal knowledge. Fed. R. Evid. 602. Whether Ponce’s testimony is

credible is a matter of weight, rather than admissibility. See Fed. R. Evid. 602 (“A

witness may testify to a matter only if evidence is introduced sufficient to support a

finding that the witness has personal knowledge of the matter. Evidence to prove

personal knowledge may consist of the witness’s own testimony”). Accordingly,

evidence of Blanco’s conduct is admissible to show Crowley had notice of Blanco’s

conduct and are not excluded as inadmissible hearsay. The contents of the Ethics

Point reports and Ponce’s related testimony are admissible to establish Blanco’s

modus operandi.

4. Rule 415

Crowley requests that the testimony of Ponce be limited to the information

contained in the Ethics Point complaints against Blanco that launched Crowley’s

internal investigation. Crowley Mot. at 19. Plaintiff opposes Crowley’s request,

arguing that Ponce’s testimony should not be limited and is admissible under Rule

415. Pl. Resp. (Crowley) at 14. Federal Rule of Evidence 415 allows evidence that

shows a party committed “any other sexual assault,” as defined in Rule 413, in a civil

sexual assault lawsuit. Fed. R. Evid. 415(a). Rule 413 contains five definitions of the

term “sexual assault,” including “contact, without consent, between any part of the

defendant’s body . . . and another person’s genitals or anus.”5 Fed. R. Evid. 413(d)(2).

Courts have construed the term “genitals” to exclude a person’s breasts. See Davis v.

Pope, No. CV 511-105, 2013 WL 3934209, at *7 (S.D. Ga. July 30, 2013); Seeley v.

Chase, 443 F.3d 1290, 1297 (10th Cir. 2006) (finding that evidence the defendant

rubbed a victim’s breasts did not qualify under 413(d)(2)).

Here, testimony of Ponce’s allegations against Blanco is not admissible under

Rule 415. Crowley’s description of Ponce’s anticipated testimony is vague,

speculating she will recount that Blanco groped her. Crowley Mot. at 20. Plaintiff

does not provide any details, but rather also implies that she will testify that she was

physically assaulted by Blanco. Pl. Resp. (Crowley) at 14. Regardless, evidence that

Blanco groped or touched Ponce’s breasts does not fall within the purview the term

“genitals” within Rule 413. See Fed. R. Evid. 415(a); Davis, 2013 WL 3934209, at *8;

Seeley, 443 F.3d at 1297. Because groping or touching of another’s breasts is not

5 The full list of definitions contained within Rule 415 is as follows:

(d) Definition of “Sexual Assault.” In this rule and Rule 415, “sexual

assault” means a crime under federal law or under state

law . . . involving:

(1) any conduct prohibited by 18 U.S.C. chapter 109A;

(2) contact, without consent, between any part of the defendant’s

body—or an object—and another person’s genitals or anus;

(3) contact, without consent, between the defendant’s genitals or

anus and any part of another person’s body;

(4) deriving sexual pleasure or gratification from inflicting death,

bodily injury, or physical pain on another person; or

(5) an attempt or conspiracy to engage in conduct described in

subparagraphs (1)–(4).

Fed. R. Evid. 415(d).

included under Rule 413’s definition, Rule 415 does not provide for admission of

Ponce’s testimony.

However, and as discussed, Ponce’s testimony is relevant for Blanco’s modus

operandi. The Court may determine that certain constraints and limitations are

warranted at trial, but that can be accomplished with a proper objection by the parties

at that time. See Harris, 2021 WL 5028201, at *1 (“A denial of a motion in limine is

not a ruling which affirmatively admits any particular evidence”); Barfield, 2017 WL

662012, at *3 (stating that a court may deny or defer ruling on any of the issues to

see the evidence in context at trial). Therefore, Crowley’s request to limit Ponce’s

testimony to the information contained in the Ethics Point report is denied, but

Crowley may renew any objection to the relevant evidence at trial for evaluation in

its proper context provided there is additional support.

IV. Characterization that Plaintiff’s Termination Was a “Pretext” or

“Pretextual”

The parties dispute whether Plaintiff’s potential characterization that her

termination was a “pretext” or “pretextual” should be excluded. Crowley Mot. at 22;

Pl. Resp. (Crowley) at 15. Crowley claims that the use of the term “pretext” or

“pretextual” infers that Plaintiff’s termination was due to unlawful or discriminatory

employment practices by Crowley. Crowley Mot. at 22. Because unlawful or

discriminatory employment practices are not at issue in this case, Crowley argues

that any reference to Plaintiff’s termination as a “pretext” or “pretextual” will

therefore confuse the issues or mislead the jury and must be excluded under Rule

403.

Here, granting Crowley’s request would be improper. The terms “pretext” or

“pretextual” are not exclusive to employment discrimination claims brought under

Title VII. It is unclear to the Court why Crowley believes the use of the word “pretext”

would lead to confusion. Crowley only claims “[t]he burden shifting framework that

is set forth in McDonnel Douglas and applies to various causes of action does not

apply to any of the claims made by Plaintiff,” and any use of “pretext” or “pretextual”

“implies that Plaintiff’s termination was the result of an unlawful employment action

such as discrimination” in the context of a Title VII action. Crowley Mot. at 22–23;

see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973) (stating the Title VII

claimant must be able to show that an employer’s reasons for refusing to re-employ

the claimant was a pretext or discriminatory in its application). Crowley’s argument

is unpersuasive. Crowley fails to consider the layman definition of “pretext,” which

consists of “a purpose or motive alleged or an appearance assumed in order to cloak

the real intention or state of affairs.” Pretext, Merriam-Webster’s Dictionary,

https://www.merriamwebster.com/dictionary/pretext?utm_campaign=sd&utm_medi

um=serp&utm_source=jsonld (last visited Jan. 22, 2024). Crowley seems to assume

that the jury will know the McDonnel Douglas framework and impute the term of art

definition to “pretext” without supporting this conclusion with any authority.

Moreover, any characterization by Plaintiff that her termination was a “pretext” or

“pretextual” affects the weight of the evidence, not its admissibility. See Fed. R. Evid.

602. Accordingly, Crowley’s request to prohibit Plaintiff’s description of her

termination as a “pretext” or “pretextual” is denied.

V. Evidence Regarding Blanca Hernandez

Lastly, the parties dispute whether Plaintiff may introduce Hernandez’s

testimony concerning her mental health. Blanco Mot. at 9–10; Pl. Resp. (Blanco) at

7. Blanco moves to exclude testimony of Hernandez’s mental state under Rules 401

and 403, which he anticipates Plaintiff will introduce to illustrate the lasting effects

of Blanco’s conduct upon Hernandez’s psychiatric treatment, medications, and

financial state. Blanco Mot. at 9. Plaintiff counters that the testimony evinces

Blanco’s knowledge and Crowley’s notice as elements of her claims under the TVPRA.

Pl. Resp. (Blanco) at 7.

Evidence is relevant if it affects the probability of a fact of consequence to a

claim underlying the action. Fed. R. Evid 401. Relevant evidence may nonetheless

be excluded if its probative value is substantially outweighed by its danger to be

unduly prejudicial, to waste time, or by its needlessly cumulative effect. Fed. R. Evid.

403.

Here, Hernandez’s testimony is relevant to display Blanco’s modus operandi,

as explained above. However, any mental toll upon Hernandez or ailments she

suffered as a result of Blanco’s alleged conduct are not relevant to Plaintiff’s TVPRA

suit. Indeed, Hernandez’s emotional toil stemming from interactions with Blanco has

little to no bearing upon any elements Plaintiff must prove to be successful under the

TVPRA.6 See 18 U.S.C. §§ 1589, 1591. Moreover, the potential for confusion and the

6 Plaintiff contends that evidence of Hernandez’s enrollment in Crowley’s wellness

program and prescribed medications are probative of Crowley’s notice as to Blanco’s

prejudicial effect Blanco might suffer is great. The specific damages incurred by an

unrelated party as a result of Blanco’s alleged actions might inflame the jury and lead

to an emotional decision, and it could further confuse or mislead the jury as to whose

damages are at issue. Accordingly, Blanco’s request is granted in part, and Plaintiff

is prohibited from introducing testimony from Hernandez relating to hardships she

suffered resulting from Blanco’s misconduct.

CONCLUSION

For the foregoing reasons, it is

ORDERED that Crowley’s motion in limine to exclude evidence, see ECF No.

140, is granted in part and denied in part consistent with this opinion; and it is

further

ORDERED that Blanco’s motion in limine to exclude evidence, see ECF No.

141, is granted in part and denied in part consistent with this opinion; and it is

further

ORDERED that Crowley’s request to exclude evidence of a settlement offer to

Plaintiff at trial is denied, but exclusion of reference to amounts of money offered

during such settlement negotiations is granted; and it is further

workplace behavior. Pl. Resp. (Blanco) at 7–8. Plaintiff offers nothing to suggest that

an employee’s use of workplace resources or any personal medical treatments are

available to Crowley. Moreover, assuming Hernandez’s medical treatments are not

confidential and were known to Crowley, Plaintiff offers nothing to suggest that

Crowley would then know or be able to find out the underlying basis for such

treatment. Accordingly, Plaintiff’s argument is rejected.

ORDERED that Crowley’s request to exclude introduction of the complaints

against Granada and Lopez is denied; and it is further

ORDERED that Crowley and Blanco’s request to exclude evidence of Blanco’s

conduct, Ponce’s Ethics Point reports, and her related testimony is denied; and it is

further

ORDERED that Crowley’s request to prohibit Plaintiff from characterizing

her termination by Crowley as “pretextual” or a “pretext” is denied; and it is further

ORDERED that Blanco’s request to exclude testimony of Hernandez’s

interactions with Blanco is denied, but his request to exclude discussion of

Hernandez’s own damages resulting from Blanco’s treatment is granted.

/s/ Claire R. Kelly

Claire R. Kelly, Judge*

Dated: February 1, 2024

New York, New York

* Judge Claire R. Kelly, of the United States Court of International Trade, sitting by

designation.