Karthauser v. Columbia 9-1-1 Communications District

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DIANA KARTHAUSER, Case No. 3:20-cv-127-SI

Plaintiff, OPINION AND ORDER ON

M OTIONS IN LIMINE

v.

COLUMBIA 9-1-1 COMMUNICATIONS

DISTRICT,

Defendant.

Stephen L. Brischetto, LAW OFFICE OF STEPHEN L. BRISCHETTO, 621 SW Morrison Street,

Suite 1025, Portland, Oregon 97205; and Matthew C. Ellis, LAW OFFICE OF MATTHEW C. ELLIS,

621 SW Morrison Street, Suite 1025, Portland, Oregon 97205. Of Attorneys for Plaintiff.

Karen M. O’Kasey and Blake H. Fry, HART WAGNER LLP, 1000 SW Broadway, Twentieth

Floor, Portland, Oregon 97205. Of Attorneys for Defendant.

Michael H. Simon, District Judge.

Plaintiff Diana Karthauser (Karthauser) is a former employee of Defendant

Columbia 9-1-1 Communications District (C911). After the Court’s ruling granting in part and

denying in part Defendant’s motion for summary judgment (ECF 70), Karthauser will present

four claims to a jury. Karthauser asserts two claims for sex discrimination, alleging that C911

terminated Karthauser’s employment and/or referred her for criminal prosecution because of her

sex, in violation of Title VII of the Civil Rights Act of 1964 (42 USC § 2000e-2(a)) and Oregon

Revised Statutes (ORS) 659A.030(1)(a). Karthuaser also asserts two claims for retaliation,

alleging that C911 terminated Karthauser’s employment because of her role in reporting

information and/or opposing what she reasonably believed was evidence of sexual harassment or

sexual discrimination by C911’s Executive Director Steve Watson (Watson), in violation of

Title VII of the Civil Rights Act of 1964 (42 USC §2000e-3(a)) and ORS 659A.030(1)(f).

Pending before the Court are the parties’ motions in limine.

STANDARDS

A motion in limine, broadly defined, means “any motion, whether made before or during

trial, to exclude anticipated prejudicial evidence before the evidence is actually offered.” Luce v.

United States, 469 U.S. 38, 40, n.2 (1984); United States v. Heller, 551 F.3d 1108, 1111 (9th Cir.

2009) (stating that a motion in limine is a “procedural mechanism to limit in advance testimony

or evidence in a particular area”). As with other motions raised before trial, motions in limine

“are useful tools to resolve issues which would otherwise clutter up the trial.” City of Pomona v.

SQM N. Am. Corp., 866 F.3d 1060, 1070 (9th Cir. 2017) (citation and quotation marks omitted);

see also Luce, 469 U.S. at 41 n.4 (explaining that a court may rule in limine “pursuant to the

district court’s inherent authority to manage the course of trials”). Further, “a ruling on a motion

in limine is essentially a preliminary opinion that falls entirely within the discretion of the district

court. The district court may change its ruling at trial because testimony may bring facts to the

district court’s attention that it did not anticipate at the time of its initial ruling.” Id.

In many instances, however, rulings “should be deferred until trial, so that questions of

foundation, relevancy, and potential prejudice may be resolved in proper context.” United States

v. Pac. Gas & Elec. Co., 178 F. Supp. 3d 927, 941 (N.D. Cal. 2016). To exclude evidence on a

motion in limine, “the evidence must be inadmissible on all potential grounds.” McConnell v.

Wal-Mart Stores, Inc., 995 F. Supp. 2d 1164, 1167 (D. Nev. 2014). Thus, denial of a motion in

limine to exclude certain evidence does not mean that all evidence contemplated by the motion

will be admitted, only that the court is unable to make a comprehensive ruling in advance of trial.

Id. at 1168.

BACKGROUND

To prove sex discrimination under both Title VII and its Oregon counterpart,

ORS 659.030(1)(a), Karthauser must prove the following elements by a preponderance of the

evidence: (1) Karthauser was discharged and/or referred for criminal prosecution by C911;

(2) C911 discharged Karthauser and/or referred her for criminal prosecution because of her sex;

(3) Karthauser was performing her job satisfactorily; and, (4) similarly situated individuals

outside Karthauser’s sex were treated more favorably. See 9th Cir. Civ. Jury Instr. 10.1 (rev.

Sept. 2022); see also Weil v. Citizens Telecom Services Co., LLC, 922 F.3d 993, 1003 (9th Cir.

2019) (explaining that in a termination claim, as opposed to a failure to hire claim, a plaintiff

must show she was “performing satisfactorily,” as opposed to showing she was qualified to be

hired for the position). “Because of” means “by reason of” or “on account of.” This is sometimes

referred to as “but-for causation.” This form of causation is shown whenever a particular

outcome would not have happened “but for” the purported cause. It is a reason without which

the adverse employment action would not have occurred. See Bostock v. Clayton Cnty., 140 S.

Ct. 1731, 1739 (2020) (explaining “because of” and but-for causation in context of claim under

Title VII). “Similarly situated” means similarly situated “in all material respects.” Moran v.

Selig, 447 F.3d 748, 755 (9th Cir. 2006). In general, employees are similarly situated when they

have similar jobs and display similar conduct. Hawn v. Executive Jet Management Inc., 615

F.3d 1151, 1157 (9th Cir. 2010).

To prove retaliation under both Title VII and its Oregon counterpart,

ORS 659A.030(1)(f), Karthauser must prove the following elements by a preponderance of the

evidence: (1) Karthuaser opposed an unlawful employment practice by reporting information she

reasonably believed was evidence of sexual harassment or sexual discrimination by the

Executive Director of C911; (2) C911 subjected Karthauser to an adverse employment action by

terminating her employment; and (3) Karthauser was subjected to the adverse employment action

of employment termination because of her opposition to an unlawful employment practice. See

9th Cir. Civ. Jury Instr. 10.8 (rev. Mar. 2022); see also Crawford v. Metro. Gov’t of Nashville &

Davidson Cty., Tenn., 555 U.S. 271, 274 (2009) (explaining that Title VII’s antiretaliation

provision has two alternative clauses, an “opposition clause,” and a “participation clause”);

Freitag v. Ayers, 468 F.3d 528, 541 (9th Cir. 2006) (stating the elements of a retaliation claim

under the opposition clause). Under the opposition clause, “protection will be accorded whenever

the opposition is based on a reasonable belief that the employer has engaged in an unlawful

employment practice.” Id. (citation omitted). A plaintiff is subjected to an adverse employment

action because of her opposition to an unlawful employment practice if the adverse employment

action would not have occurred but for that opposition. See Bostock, 140 S. Ct. at 1739.

Regarding damages, Plaintiff’s position is somewhat inconsistent. In her Complaint,

Karthauser alleges that she has suffered, among other things, “lost wages, fringe benefits and

pre-judgment interest in an amount to be determined at trial” and that she is “entitled to

reinstatement of her employment or in the alternative an award of future wages and fringe

benefits in an amount to be determined at trial.” ECF 1 at ¶ 34. In Plaintiff’s Trial Memorandum

(ECF 78), she states: “Plaintiff seeks an award of back pay / lost wages, as well as other

economic loss related to her criminal case that she would not have incurred, but for the

discriminatory referral of her matter for criminal prosecution.” ECF 78, at 17 (emphasis added).

In Plaintiff’s Response to Defendant’s Motions in Limine, however, Karthauser states that

“Plaintiff’s complaint alleges claims for ‘lost wages, fringe benefits’ and ‘future wages and

benefits,’ not claims for back pay and front pay.” ECF 102 at 16 (emphasis added). Karthauser

also seeks “[a]n award of compensatory damages for emotional distress, damage to reputation

and other compensatory damages in an amount to be determined at trial.” ECF 1 at 11. These

issues will be discussed further below.

DISCUSSION

A. Plaintiff’s Motions in Limine

1. “Same Decision”

Plaintiff requests an order precluding Defendant from offering evidence or argument that

Defendant would have made the same decision to terminate Plaintiff or to refer her for criminal

prosecution in the absence of sex discrimination or retaliation. Defendant does not oppose this

motion. The Court GRANTS this motion.

2. Failure to Mitigate

Plaintiff requests an order precluding Defendant from offering evidence or argument that

Plaintiff failed to mitigate her damages. Defendant does not oppose this motion. The Court

GRANTS this motion.

3. Karthauser’s Criminal Conviction

Plaintiff requests an order precluding Defendant from offering evidence or argument that

Plaintiff was convicted of a criminal offense. The Court begins by noting that on July 5, 2022,

the Columbia County Circuit Court ordered all records of Plaintiff’s arrest, charge, and

conviction set aside and expunged. Thus, as narrowly framed by Plaintiff, the Court GRANTS

this motion.

The Court also notes that Plaintiff has offered her Petition to Plead Guilty (Ex. 77) and

the Order to Set Aside Conviction (Ex. 79). Both documents show that Plaintiff was “convicted”

of a criminal offense. To the extent that Plaintiff opens the door to evidence of her conviction,

the Court will not preclude Defendant from offering appropriate evidence or argument. Further,

to the extent that Plaintiff may seek to present evidence or argument regarding Defendant’s

referral of Plaintiff to the District Attorney or any related actions taken by the Oregon State

Police or a grand jury, the Court will discuss that topic elsewhere in this Order.

Finally, the Court notes that Defendant has offered as Exhibit 210 the grand jury’s

indictment of Karthauser (ECF 81 at 2). Karthauser objects to Defendant’s Exhibit 210 as

irrelevant (ECF 100 at 3). Karthauser herself, however, as offered that same document as

Plaintiff’s Exhibit 76 (ECF 72 at 6) and has neither withdrawn her Exhibit 76 nor withdrawn her

objection to Defendant’s Exhibit 210.

4. Leading Questions

Plaintiff states that she may call as witnesses in Plaintiff’s case-in-chief Defendant’s

Board members, managers, attorneys, employees, and former managers and employees. Plaintiff

requests leave under Rule 611(c)(2) of the Federal Rules of Evidence to ask leading questions of

these witnesses. Defendant does not oppose this motion except as to Defendant’s former

Executive Directors Steve Watson and Brian Burright. For the reasons stated below, the Court

GRANTS this motion, including questions directed to Mr. Watson and Mr. Burright.

Rule 611 provides in relevant part: “Ordinarily, the court should allow leading

questions . . . when a party calls a hostile witness, an adverse party, or a witness identified with

an adverse party.” Fed. R. Evid. 611(c)(2). “Rule 611 is designed to enlarge the categories of

witnesses automatically considered to be adverse without any further showing of hostility so that

leading questions may be used during their examination.” 4 Weinstein’s Federal Evidence

§ 611.06[3]. The former executive directors of Defendant are sufficiently “identified” with

Defendant to satisfy this rule. See Winant v. Bostic, 5 F.3d 767, 773 (4th Cir. 1993) (holding that

trial court did not abuse its discretion by allowing plaintiffs to use leading questions when

examining former agent of defendants whom defendants had discharged).

5. Exclusion of Witnesses

Plaintiff requests an order excluding witnesses other than the parties and limiting

Defendant to one representative present during testimony. Defendant does not oppose this

motion and requests that it be reciprocal. Rule 615, in relevant part, does not authorize excluding

a party who is a natural person, an officer or employee of a party that is not a natural person after

being designated as the party’s representative by its attorney, or a person whose presence a party

shows to be essential to presenting the party’s claim or defense. Fed. R. Evid. 615. The third

category typically encompasses expert witnesses. No party, however, appears to be calling any

expert witnesses. The Court GRANTS this motion reciprocally for both sides.

B. Defendant’s Motions in Limine

1. Referral to District Attorney

Defendant requests an order precluding Plaintiff from offering evidence or argument

relating to Defendant’s referral of Plaintiff to the District Attorney. Plaintiff opposes this motion.

For the reasons stated below, the Court DENIES this aspect of Defendant’s motion.

Defendant argues that, after summary judgment, the only remaining basis for Plaintiff’s

“referral” allegation is her gender discrimination claim under ORS 659A.030(1)(a) and Title VII.

Defendants adds, however, that unlike the state and federal retaliation statutes, the gender

discrimination statutes do not allow recovery for actions taken after a plaintiff’s discharge that

are unrelated to the terms, conditions, or privileges of employment. Defendant asserts that

Plaintiff “was referred to the District Attorney after her discharge.” ECF 84 at 3. In response,

Plaintiff states that Defendant referred Plaintiff to the District Attorney “prior to Karthauser’s

termination on July 16, 2018.” ECF 102 at 4. In addition, Plaintiff has presented sufficient

evidence at least to create a triable issue on this question. See ECF 115.

2. Watson Investigation and Resignation

Defendant requests an order precluding Plaintiff from offering evidence or argument

relating to Defendant’s investigation of its former Executive Director Steve Watson and his

subsequent resignation. Plaintiff opposes this motion. For the reasons stated below, the Court

DENIES Defendant’s motion.

In its summary judgment decision, the Court concluded that the question of whether

Watson is a “similarly situated” “comparator” for purposes of a claim of sex discrimination is a

question for the jury. ECF 70 at 12-13. Moreover, the outcome of the Watson investigation, and

Karthauser’s role in that investigation, is relevant to whether Fletcher had a retaliatory motive

against Karthauser based on Fletcher’s relationship to Watson. Further, Defendant has listed

Watson as a defense witness. The outcome of the Watson investigation, and Karthauser’s role in

that investigation, is relevant to Watson’s possible bias.

3. Miller Investigation

Defendant requests an order precluding Plaintiff from offering evidence or argument

relating to Defendant’s investigation of its former employee Tyler Miller. Plaintiff opposes this

motion. For the reasons stated below, the Court DENIES Defendant’s motion.

Plaintiff argues that attorney Blitz’s confidential report about Miller submitted to

Defendant’s Board was part of and related to Defendant’s investigation of Watson and is,

therefore, relevant for several of the same reasons that the Watson investigation is relevant. Also,

before Defendant’s referral of Plaintiff to the District Attorney, Defendant’s attorney Blitz

referred Miller and his action to the Clackamas County District Attorney (rather than to the

Columbia County District Attorney) to avoid any appearance of bias. Before referring Plaintiff

and her action to a District Attorney, Defendant learned that the Clackamas County District

Attorney declined to prosecute Miller. After receiving that information, Defendant referred

Plaintiff to the Columbia County District Attorney. Thus, according to Plaintiff, Defendant

referred Miller (a man) to an unbiased District Attorney but referred to Karthauser (a woman) to

a potentially biased District Attorney.

4. Miller Lawsuit

Defendant requests an order precluding Plaintiff from offering evidence or argument

relating to Miller’s unsuccessful lawsuit against Defendant and its outside law firm. The Court

does not immediately see the relevance of any issues relating to Miller’s lawsuit but will wait to

rule on any objections timely made at trial. Accordingly, the Court DENIES Defendant’s motion

without prejudice to Defendant’s ability to raise timely objections at trial.

5. BOLI Documents

After Defendant terminated Plaintiff’s employment, she filed a complaint with the

Oregon Bureau of Labor and Industries (BOLI). Plaintiff offers numerous exhibits relating to her

BOLI complaint, including correspondence to BOLI from Defendant’s attorney, Akin Blitz, and

BOLI’s Notice of Substantial Evidence Determination (Exhibit 75). Defendant requests an order

precluding this evidence as irrelevant, unfairly prejudicial, and inadmissible hearsay. Plaintiff

opposes Defendant’s motion. For the reasons stated below, the Court GRANTS IN PART AND

DENIES IN PART this motion.

a. BOLI’s Substantial Evidence Determination (Ex. 75)

Plaintiff argues that it is reversible error in a Title VII case to exclude evidence of an

EEOC finding that there is probable cause to believe discrimination occurred, citing Plummer v.

Western International Hotels Co., 656 F.2d 502, 504 (9th Cir. 1981). Plummer held that an

EEOC probable cause determinations is per se admissible. Id. at 505 (explaining that “[a] civil

rights plaintiff has a difficult burden of proof, and should not be deprived of what may be

persuasive evidence” when such evidence is “prepared by professional investigators on behalf of

an impartial agency” and is “highly probative” of an individual’s discrimination complaint).

Plaintiff further argues that it is error to exclude evidence of similar state administrative

agencies’ determinations of discrimination, citing Heyne v. Caruso, 69 F.3d 1475, 1483 (9th Cir.

1995) (“[T]he Plummer ruling is not restricted solely to EEOC findings of probable cause but

extends to similar administrative determinations, including [a state agency’s] findings.”).

Defendant urges the Court to view the BOLI substantial evidence determination as

equivalent to an EEOC letter of violation in an Age Discrimination in Employment Act (ADEA)

case, rather than a finding of probable cause. The proper standard for EEOC letters of violation is

stated in Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488 (9th Cir. 1986), which held that

EEOC letters of violation were potentially prejudicial and not subject to the per se admissibility

rule under Plummer. Id. at 1500 (“A letter of violation . . . represents a determination by the

EEOC that a violation of the [ADEA] has occurred and thus results in a much greater possibility

of unfair prejudice.”); see also Amantea-Cabrera v. Potter, 279 F.3d 746 (9th Cir. 2002).

According to Defendant, the BOLI determination is closer to an EEOC letter of violation in an

ADEA case than it is to a probable cause determination issued by the EEOC in a Title VII case,

because the BOLI investigator made findings of fact and concluded there was substantial

evidence of unlawful employment practices.

Defendant’s characterization is not persuasive. Unlike the EEOC letter of violation in

Gilchrist, the BOLI determination of substantial evidence is only a preliminary determination.

BOLI would still need to take further action before making a final administrative ruling:

Once BOLI receives the signed complaint, the case is opened and a

BOLI Senior Civil Rights Investigator will investigate the

complaint to determine if there is a link between the harm

experienced (discriminatory act) and the protected class . . . At the

completion of the investigation, BOLI will decide whether there is

substantial evidence of an unlawful practice. If BOLI does not find

substantial evidence of an unlawful practice, the case will be

dismissed. If BOLI does find substantial evidence, the case may be

moved toward conciliation or referred to the Administrative

Prosecution Unit for review. The Administrative Prosecution Unit

may choose to close a case, settle a case, or take the case to an

administrative hearing.”

Or. Bureau of Labor & Indus., BOLI Investigations, https://www.oregon.gov/boli/

employers/Pages/BOLI-investigations.aspx (last visited Jan. 18, 2023). Thus, unlike a finding of

no probable cause, BOLI’s substantial evidence determination is not a final ruling by the agency.

See Beachy v. Boise Cascade Corp., 191 F.3d 1010, 1015 (9th Cir. 1999) (distinguishing an

agency’s “probable cause finding” from BOLI’s determination that insufficient facts exist to

continue the investigation and noting that “[t]here is much greater risk of unfair prejudice

involved in introducing a final agency ruling as opposed to a probable cause determination”).

Thus, the BOLI determination is similar to the EEOC reasonable cause determination in

Plummer. See Heyne, 69 F.3d at 1483 (holding that a Nevada Equal Rights Commission

probable cause finding was per se admissible under Gilchrist and Plummer); Gilchrist, 803 F.2d

at 1500 (“A finding of probable cause does not suggest to the jury that the EEOC has already

determined that there has been a violation. Rather, it suggests that preliminarily there is reason to

believe that a violation has taken place.”). As in Gilchrist and Heyne, it would appear to be

reversible error for the Court to exclude the BOLI substantial-evidence determination from

evidence.

This matter is complicated, however, by a conflict under Oregon law. The Oregon Court

of Appeals has held that a BOLI substantial-evidence determination is hearsay and thus

inadmissible in a civil discrimination action to establish the truth of the determination. Sleigh v.

Jenny Craig Weight Loss Centres, Inc., 161 Or. App. 262, 266-67, on recons., 163 Or. App. 20

(1999) (explaining that BOLI determinations are based on hearsay rather than the investigator’s

firsthand knowledge and are not designed to be factual findings based on truth); see also H. K. v.

Spine Surgery Ctr. of Eugene, LLC, 305 Or. App. 606, 610 n.3 (2020) (citing Sleigh and holding

that admission of BOLI documents was reversible error). Only one Ninth Circuit case appears to

have addressed the admissibility of BOLI documents in a lawsuit asserting claims under both

federal and Oregon law, but the parties in that case failed to raise a hearsay objection to the

BOLI documents. See Beachy, 191 F.3d at 1016 (evaluating for plain error and concluding any

error in admission of BOLI documents was harmless).

Accordingly, if Plaintiff offers BOLI’s substantial evidence determination to show the

truth of that determination, this evidence likely is inadmissible hearsay for purposes of Plaintiff’s

state-law claim. For Plaintiff’s federal law claim, however, BOLI’s determination likely is per se

admissible. It is difficult, and perhaps impossible, for the Court to construct an effective limiting

instruction that tells the jury that they may consider the BOLI Notice of Substantial Evidence

Determination (Ex. 75) only for Plaintiff’s federal claim but must disregard that evidence for

Plaintiff’s state claim. Despite its per se admissibility holdings in Plummer and Heyne, the Ninth

Circuit notes that courts must still perform the weighing process mandated by Rule 403 when

considering the admission of BOLI documents. See Beachy, 191 F.3d at 1015 (“[I]t appears that

Judge Jelderks may have felt compelled to admit the documents pursuant to Plummer and Heyne

and may not have weighed independently the documents’ probative value and potential for

prejudice.”). Here, the probative value of the BOLI substantial evidence finding for Plaintiff’s

federal claim is substantially outweighed by the danger of juror confusion for Plaintiff’s state

claim. Thus, the Court excludes the evidence of BOLI’s Notice of Substantial Evidence

Determination (Ex. 75) under Rule 403.

b. Attorney Blitz’s Correspondence with BOLI

Defendant argues that attorney Blitz’s communications to BOLI and others about

Plaintiff’s BOLI complaint do not tend to prove that Defendant discriminated or retaliated

against Plaintiff and thus are irrelevant. Plaintiff responds that Blitz’s letters to BOLI are

admissible to establish pretext on both the gender discrimination and retaliation claims. Plaintiff

points to the Court’s summary judgment decision, in which the Court found that Plaintiff’s

evidence of Defendant’s excessive response was admissible to establish pretext. Plaintiff argues

that Blitz’s communications with BOLI are evidence of Defendant’s excessive response to

Plaintiff’s alleged misconduct. Defendant correctly asserts that the burden-shifting framework,

which include a pretext analysis, does not apply at trial, where the only question is whether

Plaintiff can prove she was discharged because of her sex (a discrimination claim) or because of

her opposition to sexual harassment (a retaliation claim), citing St. Mary’s Honor Center. v.

Hicks, 509 U.S. 502, 511-12 (1993).

But there is more to Hicks. As the Supreme Court explained in Hicks, a plaintiff at trial

“has the full and fair opportunity to demonstrate, through presentation of his own case and

through cross-examination of the defendant’s witnesses, that the proffered reason was not the

true reason for the employment decision and that race was. [The plaintiff] retains that ultimate

burden of persuading the trier of fact that [she] has been the victim of intentional

discrimination.” Id. at 507-08 (cleaned up). Further, a “factfinder’s disbelief of the reasons put

forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity)

may, together with the elements of the prima facie case, suffice to show intentional

discrimination. Thus, rejection of the defendant’s proffered reasons will permit the trier of fact to

infer the ultimate fact of intentional discrimination.” Id. at 511 (cleaned up).

Blitz’s communications relating to Plaintiff’s BOLI complaint are relevant to show his

bias and animus against Plaintiff and thus are admissible to impeach Blitz as a witness under

Rule 608(c). In addition, other portions of the challenged exhibits are admissible under

FRE 801(d)(2)(C) or (D) as relevant to Plaintiff’s sex discrimination claim based on Defendant’s

referral of Plaintiff for criminal prosecution. For example, in Plaintiff’s Exhibit 57, Blitz

indicates he knows that the “litany of crimes” he lists in his letter to BOLI contains a “deep

reach.” Other contested exhibits, such as Plaintiff’s Exhibit 62, contain statements that Blitz

asked the District Attorney to condition a plea deal on revocation of Karthauser’s “DPSST

certification,” which Plaintiff may argue shows Defendant’s “excessive” response. Because

Defendant authorized Blitz to make statements on these subjects or because Blitz acted as

Defendant’s agent in doing so, Blitz’s statements are not hearsay, and, because they are relevant,

the Court will not exclude them.

c. Plaintiff’s BOLI Complaint

Plaintiff’s BOLI complaint is found at Plaintiff’s Exhibit 54. It is hearsay and not subject

to any exception. Plaintiff argues that her BOLI complaint is offered not for the truth of the

matter asserted but to show bias by Blitz and Defendant. Plaintiff’s own statements in her BOLI

complaint are not evidence of Defendant’s bias, at least without accepting the truth of the matters

asserted. Further, it is undisputed that Plaintiff timely filed a BOLI complaint and timely filed

this lawsuit after BOLI issued its substantial evidence determination. There is no need to provide

the jury with the BOLI complaint itself to understand the context of attorney Blitz’s

correspondence about that complaint. The statements in Plaintiff’s BOLI complaint are relevant

only for the truth of the matters asserted and thus are inadmissible hearsay when offered by

Plaintiff. Thus, the Court excludes Plaintiff’s BOLI complaint, if offered by Plaintiff.

6. Unpaid Wages

Defendant requests an order precluding Plaintiff from offering evidence or argument

relating to the fact that Plaintiff worked excessive hours for Defendant for which she was not

paid. Plaintiff opposes this motion. For the reasons stated below, the Court GRANTS IN PART

AND DENIES IN PART Defendant’s motion.

Defendant correctly argues that Plaintiff has not brought an unpaid wages claim against

Defendant. Thus, Plaintiff may not argue to the jury that Defendant owes Plaintiff any

compensation for time worked but not paid. Upon timely request by Defendant, the Court will

give the jury a limiting instruction on this issue.

Plaintiff, however, correctly argues that the evidence of Plaintiff’s hard work and long

hours, even when uncompensated and even though known to Plaintiff’s supervisors, is relevant

in several respects. First, this evidence provides context regarding the circumstances that led to

the provision of a self-study training program for Defendant’s dispatchers. Second, this evidence

provides circumstantial evidence that Plaintiff had no intent or motive to deceive Defendant

regarding training hours. Third, this evidence is circumstantial evidence of Defendant’s failure to

follow its own workplace policies. Fourth, this evidence is circumstantial that Plaintiff was

performing satisfactorily. For all these reasons, the Court will allow this evidence.

7. Fletcher’s Criminal Conviction

Defendant requests an order precluding Plaintiff from offering evidence or argument that

Michael Fletcher was charged in 1992 with criminal mischief involving a firearm. Plaintiff does

not oppose this motion. The Court GRANTS this motion.

8. Rumors regarding Edinger and Hilsinger

Defendant requests an order precluding Plaintiff from offering evidence or argument

about rumors that were circulating among Defendant’s employees regarding either Tracy

Edinger or Trish Hilsinger. Plaintiff argues that the Court should deny this motion because it is

not specific enough to give Plaintiff an opportunity meaningfully to respond. Plaintiff adds that

in Defendant’s workplace, Mr. Watson engaged in conduct towards Ms. Hilsinger that was

observable and led to rationally based lay opinions concerning inappropriate relationships in the

workplace. Plaintiff adds that many of these observable behaviors were discussed among

Defendant’s employees, reported to and investigated by outside attorney Reeves as part of her

investigation of Watson, and became part of the basis for her report and recommendations to

Defendants’ Board. The Court does not immediately see the relevance of any issues relating to

Edinger or Hilsinger but will wait to rule on any objections timely made at trial. Accordingly, the

Court DENIES this motion without prejudice to Defendant’s ability to raise timely objections at

trial.

9. Back Pay and Front Pay

Defendant requests an order precluding Plaintiff from offering in the presence of the jury

evidence or argument regarding Plaintiff’s claims for back pay and front pay. According to

Defendant, these are equitable issues for the Court and not the jury. For the reasons stated below,

the Court DENIES IN PART Defendant’s motion and RESERVES RULING IN PART on

Defendant’s motion.

a. Federal Law on Back Pay and Front Pay Under Title VII

“Title VII exists in large part to make persons whole for injuries suffered on account of

unlawful employment discrimination.” Clemens v. Centurylink Inc., 874 F.3d 1113, 1115 (9th

Cir. 2017) (citation and quotation marks omitted). Before 1991, Title VII provided only equitable

remedies, and jury trials were not available. 42 U.S.C. § 2000e-5(g)(1) (providing for

reinstatement, back pay and “any other equitable relief as the court deems appropriate”). The

Civil Rights Act of 1991 amended Title VII and added the legal remedies of compensatory and

punitive damages and the right to trial by jury for those remedies. 42 U.S.C. § 1981a(a)(1).

Recovery of compensatory and punitive damages under Title VII, however, may not

exceed certain statutory limits under 42 U.S.C. § 1981a(b)(3). The level at which damages are

capped depends on the size of the employer. 42 U.S.C. § 1981a(b)(3)(A)-(D). A jury must not be

advised of these limitations. 42 U.S.C. § 1981a(c)(2). Because awards of back pay are not an

element of compensatory damages, they are not subject to the statutory limits. 42 U.S.C.

§ 1981a(b)(2). The Supreme Court has extended this rationale to exclude front pay from the

statutory limits. Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 848 (2001) (holding

that the 1991 amendments did not alter nature of front pay as equitable remedy provided for in

42 U.S.C. § 2000e-5(g)). The holding in Pollard that front pay is excluded from the statutory

limits because it is an equitable remedy suggests that there is no entitlement to a jury trial for that

remedy. See Pollard, 532 U.S. at 848.

Although the Supreme Court has declined to address definitively whether a Title VII

plaintiff has a right to a jury trial on the issue of back pay, see Landgraf v. USI Film Prods., 511

U.S. 244, 252 n.4 (1994), the Ninth Circuit has held that there is no such right. Lutz v. Glendale

Union High Sch., 403 F.3d 1061, 1069 (9th Cir. 2005) (holding that there is no right for a jury to

determine either back pay or front pay because those are equitable remedies to be decided by a

court). A district court, however, may consider submitting questions of front and back pay to a

jury for advisory findings under Rule 39(c) of the Federal Rules of Civil Procedure.

This framework requires a court to define “back pay” and “front pay” and to distinguish

these concepts from “compensatory damages” for purposes of Title VII. As noted, back pay and

front pay are equitable remedies, not subject to statutory caps because they are not part of the

legal remedy of compensatory damages under Title VII. “An award of back pay compensates

plaintiffs for lost wages and benefits between the time of the discharge and the trial court

judgment.” Johnson v. Spencer Press of Maine, Inc., 364 F.3d 368, 379 (1st Cir. 2004). “Front

pay, by contrast, is ‘money awarded for lost compensation during the period between judgment

and reinstatement or in lieu of reinstatement.’” Id. (quoting Pollard, 532 U.S. at 846). “Front pay

thus compensates plaintiffs for lost wages that may accrue after the conclusion of the trial.” Id.

Both back pay and reinstatement are authorized under 42 U.S.C. § 2000e-5(g)(1). Further,

“[r]einstatement and front pay are alternative remedies, which cannot be awarded for the same

period of time.” Teutscher v. Woodson, 835 F.3d 936, 954 (9th Cir. 2016) (holding that front pay

is “money awarded for lost compensation during the period between judgment and reinstatement

or in lieu of reinstatement” (citation and quotation marks omitted)).

Compensatory damages under Title VII are damages other than back pay or front pay that

are needed to make persons whole for injuries caused by unlawful employment discrimination or

retaliation.1 Recoverable “compensatory damages,” subject to Title VII’s caps, consist of “future

pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of

life, and other nonpecuniary losses.” 42 U.S.C. § 1981a(b)(3).

1 “Compensatory damages awarded under this section shall not include backpay, interest

on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of

1964.” 42 U.S.C. § 1981a(b)(2). As noted, front pay is authorized as equitable relief under

§ 706(g), codified at 42 U.S.C. § 2000e-5(g).

This statutory provision leads one to ask, what are future pecuniary losses, which is a

legal remedy under the rubric of compensatory damages, and how are “future pecuniary losses”

different from front pay, which is an equitable remedy? As the Supreme Court noted in Pollard:

In the abstract, front pay could be considered compensation for

“future pecuniary losses,” in which case it would be subject to the

statutory cap. § 1981a(b)(3). The term “compensatory damages . . .

for future pecuniary losses” is not defined in the statute, and, out of

context, its ordinary meaning could include all payments for

monetary losses after the date of judgment. However, we must not

analyze one term of § 1981a in isolation. . . . When § 1981a is read

as a whole, the better interpretation is that front pay is not within

the meaning of compensatory damages in § 1981a(b)(3), and thus

front pay is excluded from the statutory cap.

Pollard, 532 U.S. at 852. Pollard, however, merely states that future pecuniary losses are

different from front pay. It does not explain how they are different.

The Seventh Circuit answered this question in Williams v. Pharmacia, Inc., 137 F.3d 944

(7th Cir. 1998). Concluding that lost future earnings are a form of future pecuniary losses, the

Seventh Circuit stated that “[a]n award of lost future earnings is a common-law tort remedy. To

recover for lost earning capacity, a plaintiff must produce competent evidence suggesting that his

injuries have narrowed the range of economic opportunities available to him. A plaintiff must

show that his injury has caused a diminution in his ability to earn a living.” Id. at 952 (cleaned

up) (emphasis added). As further explained in Williams:

Front pay in this case compensated Williams for the immediate

effects of Pharmacia’s unlawful termination of her employment.

The front pay award approximated the benefit Williams would

have received had she been able to return to her old job. . . .

The lost future earnings award, in contrast, compensates Williams

for a lifetime of diminished earnings resulting from the

reputational harms she suffered as a result of Pharmacia’s

discrimination. Even if reinstatement had been feasible in this case,

Williams would still have been entitled to compensation for her

lost future earnings.

* * *

Thus, the calculation of front pay differs significantly from the

calculation of lost future earnings. Whereas front pay compensates

the plaintiff for the lost earnings from her old job for as long as she

may have been expected to hold it, a lost future earnings award

compensates the plaintiff for the diminution in expected earnings

in all of her future jobs for as long as the reputational or other

injury may be expected to affect her prospects.

Id. at 953-54. In Teutscher, the Ninth Circuit discussed Williams in a different context and did

not answer the question of how front pay may differ from lost future earnings. In the absence of

further guidance from the Ninth Circuit, the Court will follow the distinction provided by the

Seventh Circuit in Williams. Moreover, it does not appear that Karthauser is seeking “lost future

earnings” in the sense used in Williams.

b. Oregon Law on Back Pay and Front Pay

Like Title VII, ORS 659A.030 provides for equitable relief in the form of back pay and

reinstatement. ORS 659A.885(1) provides that in any action under the statute, “the court may

order injunctive relief and any other equitable relief that may be appropriate including but not

limited to reinstatement or . . . back pay.” Further, courts, not juries, decide these claims.

ORS 659A.885(1)(a) (“The judge shall determine the facts in an action under this subsection.”).

In addition, Oregon courts interpret requests for back pay as equitable claims. Seitz v. Albina

Hum. Res. Ctr., 100 Or. App. 665, 673 (1990); see also id. at 672-73 (discussing legislative

history and the close relationship between Oregon employment discrimination laws and

Title VII).2 Thus, there is no statutory basis, either under ORS 659A or Title VII, for Plaintiff’s

claim for back pay to be submitted to the jury.

2 Plaintiff cites Wooton v. Viking Distrib. Co., 136 Or. App. 56, 62 (1995), to suggest that

claims for lost wages are actions for compensatory damages tried to the jury. But Wooten did not

Oregon law on front pay, however, differs from federal law. ORS 659A.885(2)(a)

authorizes awards of compensatory damages in addition to equitable relief for claims filed under

ORS 659A.030, among other statutes. The Oregon Supreme Court has interpreted both front pay

and lost future wages as forms of compensatory damages. Tadsen v. Praegitzer Indus., 324 Or.

465, 470 (1996) (“[F]ront pay is a form of compensatory damages, because it restores the

terminated employee to the economic position that the employee would have enjoyed, were it not

for the employer’s unlawful conduct.”); see also Schram v. Albertson’s, Inc., 146 Or. App. 415,

423 (1997) (“It is questionable whether front pay is an equitable remedy in the light of the

holding in Tadsen . . . .”). This departure from Title VII conflicts with case law generally

interpreting Oregon’s employment discrimination laws to be essentially equivalent to Title VII.

See Heller v. EBB Auto Co., 8 F.3d 1433, 1437 n.2 (9th Cir. 1993) (stating that courts construe

ORS § 659.030 as “identical to” Title VII (gathering cases)); Seitz, 100 Or. App. at 672-73.

Thus, unlike back pay under ORS 659A.885(1)(a), which is for a court to decide, front pay falls

under the category of compensatory damages under ORS 659A.885(3)(a), and under Oregon law

compensatory damages are for the jury to determine. ORS 659A.885(3)(b) (“At the request of

any party, the action shall be tried to a jury.”).

c. Seventh Amendment Considerations

Plaintiff argues that her federal claims for back pay and front pay under Title VII should

be tried to a jury because those claims are based upon common questions of law and fact under

ORS 659A.885(2). She argues that these claims share questions of liability, causation, and

damage. Under the Seventh Amendment, a judge is bound by the jury’s decision on all issues

expressly address the issue now being discussed and held only that an “at-will” employee could

recover front pay.

common to the requests for legal and equitable relief. Lytle v. Household Mfg., Inc., 494

U.S. 545, 550-54 (1990); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 479 (1962) (holding legal

claims involved in case must be determined before any final court determination of equitable

claims); Beacon Theaters, Inc. v. Westover, 359 U.S. 500, 510-511 (1959) (holding district court

abused its discretion in trying to the court legal and equitable issues based upon common set of

facts).

There is no dispute that common questions of fact underlie the determination of liability

on the state law and federal claims that Plaintiff asserts. This includes the key questions of

causation, namely whether Defendant terminated Plaintiff’s employment and/or referred her for

criminal prosecution because of her sex and whether Defendant terminated Plaintiff’s

employment because of her role in reporting information and/or opposing what she reasonably

believed was evidence of sexual harassment or sexual discrimination by C911’s Executive

Director Watson. This also includes whether Karthauser was performing her job satisfactorily

and whether similarly situated men were treated more favorably. These issues must be decided

by a jury. In addition, Plaintiff’s state law claims for front pay must be submitted to a jury,

Tadsen, 324 Or. at 470, and the Court will be bound by the jury’s factual determinations on those

claims when deciding Plaintiff’s claims for front pay under Title VII. Similarly, issues relating to

Plaintiff’s compensatory damages (e.g., emotional distress and out-of-pocket costs related to her

criminal defense) are questions for the jury under both her state and federal claims. In summary,

on these questions, the Court DENIES Defendant’s motion.

That leaves only the damages portion of Plaintiff’s back pay under her state and federal

claims. The parties do not dispute that Defendant terminated Plaintiff’s employment on July 16,

2018. See ECF 78 at 11; ECF 83 at 2. Also, Defendant is not asserting either a “same defense” or

a “failure to mitigate” affirmative defense. Thus, the Court is at a loss to understand what is left

for a factfinder, whether judge or jury, to decide in determining Plaintiff’s back pay damages.

The Court requests clarification from the parties on this question. The Court also seeks the

parties’ position on whether, if the jury were to learn (or be denied learning) the amount of

Plaintiff’s lost back pay, any unfair prejudice would result and, if so, how. On these questions,

the Court DEFERS RULING on Defendant’s motion.

CONCLUSION

The Court GRANTS IN PART AND DENIES IN PART Plaintiff’s motions in limine

(ECF 75) and Defendant’s motions in limine (ECF 84) as stated in this Opinion and Order.

IT IS SO ORDERED.

DATED this 24th day of January, 2023.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge