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Siring v. Oregon State Board of Higher Education Ex Rel. Eastern Oregon University

United States District Court, Ninth Circuit

October 8, 2013

ROSEMARY SIRING, an individual, Plaintiff,
OREGON STATE BOARD OF HIGHER EDUCATION acting by and through EASTERN OREGON UNIVERSITY, a public educational institution of higher learning, Defendant.

Craig A. Crispin, and Shelley D. Russell, Crispin Employment Lawyers, Portland, Oregon. Attorneys for Plaintiff.

Michael Porter, and Cody J. Elliot, Miller Nash LLP, Portland, Oregon. Attorneys for Defendant.


MICHAEL H. SIMON, District Judge.

Dr. Rosemary Siring ("Plaintiff" or "Siring") brings this lawsuit against Oregon State Board of Higher Education, acting by and through Eastern Oregon University ("Defendant" or "EOU"). Plaintiff alleges seven claims for relief: (1) age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a); (2) age discrimination in violation of Or. Rev. Stat. § 659A.030(1)(a); (3) retaliation in violation of 29 U.S.C. § 623(d); (4) retaliation in violation of Or. Rev. Stat. § 659A.030(1)(f); (5) discrimination based on a perceived disability in violation of Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112(a); (6) disability discrimination in violation of Or. Rev. Stat. § 659A.112(1); and (7) violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). See Dkt. 53 (Pretrial Order). The Court has previously granted in part Defendant's motion for summary judgment, holding that Plaintiff may not base her retaliation claims on any actions taken by Defendant either: (1) in response to Plaintiff's March 2010 email, which is not a protected activity; or (2) after Plaintiff filed her Tort Claim Notice and BOLI complaint in July 2010, due to lack of causation. A jury trial is scheduled to begin on Tuesday, October 15, 2013, at 1:00 p.m. This Opinion and Order addresses the parties pending motions in limine and other pretrial evidentiary objections.


A. Plaintiff's Motions in Limine ( See Dkts. 75 and 86)

1. Motion to exclude evidence regarding Plaintiff's initial tenure denial and subsequent successful appeal while a professor at Montana State University


Plaintiff argues that the fact that the tenure committee at Montana State University-Billings ("MSU-B") voted to deny Plaintiff tenure is irrelevant because it concerned a different school, a different tenure process, and different reasons for initially denying tenure than are presented here. Plaintiff adds that any slight probative value of the initial denial of Plaintiff's tenure at MSU-B, before that decision was reversed by the provost and Plaintiff was offered tenure, is significantly outweighed by the risk of unfair prejudice. Defendant responds that Plaintiff "wants to tell only one side of her background." Defendant adds that Plaintiff's tenure experience at MSU-B, where the tenure committee found Siring's scholarship to be lacking, is relevant to show that Plaintiff was aware of the importance of scholarship in the university tenure process and that university-level scholarship has been an ongoing struggle for Plaintiff. The Court agrees with Defendant. These facts are relevant to the jury's assessment of Defendant's stated reasons for taking the actions that it took and are not unfairly prejudicial.

2. Motion to exclude evidence regarding Plaintiff's alleged gambling activities


Plaintiff argues that evidence of Dr. Siring's past gambling activities should be excluded as irrelevant and, alternatively, excluded under Rule 403 of the Federal Rules of Evidence ("FRE"). Defendant responds that Plaintiff's past gambling activities are relevant to the issue of Plaintiff's claim for emotional distress. Defendant notes that the report prepared by Plaintiff's expert Dr. Lauren Best indicates that Plaintiff has a history of gambling and that financial stress, including stress caused by gambling, can cause emotional distress.

Although financial stressors can be relevant to emotional distress damages, there is no evidence that Plaintiff's gambling activities and alleged gambling problem occurred near in time to the relevant actions taken by EOU in 2009 and later. In fact, it appears from Dr. Best's report that Plaintiff has not gambled since 2007.

In an attempt to lay a foundation for this evidence, Defendant may inquire of both Plaintiff and Dr. Best, out of the presence of the jury, regarding whether Plaintiff currently has a gambling program and whether she has gambled since 2007. See FRE 104(c)(3). If an evidentiary foundation is laid that shows that Plaintiff's gambling activities may be contributing to her emotional distress since 2009, evidence of those activities may be allowed, but not otherwise. Until such a foundation has been laid outside the presence of the jury and the Court so finds, Defendant may not refer to any such evidence of Plaintiff's gambling activities.

3. Motion to exclude argument and jury instruction on the "same-actor" inference


Plaintiff argues that the same-actor inference cannot properly be applied to this case, that a jury instruction on the inference is improper, and that Defendant should be barred from making any argument relating to the inference. Defendant responds that the same-actor inference was already found applicable by the Court at the summary judgment stage and that permitting argument and giving a jury instruction on the inference is proper. This Court has tentatively concluded that a jury instruction on the same-actor inference will not be given, but the parties will be free during closing argument to make reference to the "same-actor" facts and to argue that the jury may or may make draw a reasonable from these facts. Because a "same actor" argument provides only an inference that may be drawn from the facts, however, it would not be appropriate to argue any such inference during opening statement.

The Ninth Circuit has held "that where the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive." Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th Cir. 1996); see also Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1096 (9th Cir. 2005) (extending Bradley's pronouncement on the same-actor inference for "hiring and... firing" to cases where the employee is "offered a less desirable job assignment" (quotation marks omitted)). The same-actor inference is "neither a mandatory presumption (on one hand) nor a mere possible conclusion for the jury to draw (on the other hand)." Coghlan, 413 F.3d at 1098. Instead, "it is a strong inference' that a court must take into account on a summary judgment motion." Id .; see also Bradley, 104 F.3d at 271-72. The same actor inference can be overcome, however, if the plaintiff provides "meaningful evidence that her supervisor harbored discriminatory animus, " Johnson v. Boys & Girls Clubs of S. Puget Sound, 191 Fed.App'x 541, 545 (9th Cir. 2006), or "evidence suggesting that [the employer] developed a bias against [the protected class]" during the interval between the favorable and unfavorable employment actions, Coghlan, 413 F.3d at 1097.

At summary judgment, the Court concluded that although the same-actor inference applied in this case, there was "specific and substantial evidence to demonstrate that the University's reason for placing her on a terminal contract after her fourth year of employment was a pretext for age discrimination." Dkt. 39 at 39, 44. The Court concluded that there was a genuine dispute as to a material fact regarding the existence of pretext and denied the University's motion for summary judgment on Siring's age discrimination claim. Id. at 44.

Ninth Circuit precedent indicates that the same-actor inference is not typically provided as a jury instruction. The holding from Coghlan, read narrowly, would indicate that the same-actor inference is a principle of law to be applied at the motion for summary judgment stage. Coghlan, 413 F.3d at 1098. In addition, it is the practice in other circuits to leave the question of the same-actor inference to the jury. See Banks v. Travelers Cos., 180 F.3d 358, 366-67 (2d Cir. 1999); Kelley v. Airborne Freight Corp., 140 F.3d 335, 351 (1st Cir. 1998); Buhrmaster v. Overnight Transportation Co., 61 F.3d 461, 463 (6th Cir. 1995); Proud v. Stone, 945 F.2d 796, 797-98 (4th Cir. 1991). Within the Ninth Circuit, two district courts have found that because the application of the rule was not straightforward, the jury should determine whether the inference applies and if it is rebutted by additional evidence of discriminatory motive. See Conti v. Corporate Servs. Grp., Inc., No. C12-245RAJ, 2013 WL 2297140, at *12 (W.D. Wash. May 24, 2013); Creekmore v. U.S. Bank, N.A., No. C09-561RAJ, 2010 WL 3211925, at *8-9 (W.D. Wash. Aug. 12, 2010). The Court will follow this approach and leave the issue for the jury to decide without a specific instruction on the same-actor inference.

4. Motion to exclude argument and instruction on "second guessing" the business or academic decisions of Defendant


This issue will be more specifically addressed by the Court when it decides what jury instructions will be given. Plaintiff, however, is entitled to argue that Defendant's explanation for its adverse employment action is mere pretext, and Defendant will be entitled to argue to the contrary. The jury, however, will be instructed that it is not their role to substitute the jury's judgment on Plaintiff's teaching abilities or academic scholarship for Defendant's judgment if made on a non-discriminatory and non-retaliatory basis.

B. Defendants' Motions in Limine ( See Dkts. 87 and 92)

1. Motion to exclude evidence pertaining to any alleged discriminatory actions that occurred after Siring's placement on a terminal contract


Defendant argues that any evidence of discriminatory conduct by EOU during Plaintiff's terminal year should be excluded under FRE 401 because it occurred after Defendant took the adverse employment action in this case. Defendant further argues that even if this evidence were relevant, it should be excluded because it was not identified in the Pretrial Order ("PTO"). Plaintiff responds that evidence of discriminatory conduct by EOU during Dr. Siring's terminal year is relevant because it shows a continuation of disparate treatment, which makes EOU's motive and intent to discriminate more likely. Although Plaintiff concedes that this evidence was not identified in the PTO, Plaintiff argues that parties are only required to set out claims and defenses in the PTO, not all the evidence that they plan to present to support those claims and defenses.

Evidence of discriminatory conduct by an employer that occurs after an adverse employment action has been taken can be relevant to proving a discriminatory atmosphere or the continuation of disparate treatment. See Cummings v. Standard Register Co., 265 F.3d 65, 63 (1st Cir. 2001). In addition, post-decision evidence can be relevant if it sheds light on whether discriminatory animus existed at the time of the decision. See Snuggs v. Capital Cities/ABC, Inc., 122 F.R.D. 430, 431 (S.D.N.Y. 1988); Rifkinson v. CBS, Inc., No. 94-civ-7985, 1997 WL 634514 (S.D.N.Y. Oct. 14, 1997).

Although LR 16-5(b)(4) requires the parties to set out each claim and defense in the PTO, it also states that parties need "not recite the evidence to be offered at trial but will be sufficient to frame the issues presented by each claim." LR 16-5(4)(b). To the extent that evidence of alleged discriminatory conduct that occurred after the adverse employment action is not a separate claim but rather evidence that may support the Plaintiff's discrimination claims, for either liability or damage purposes, it is admissible. This will be discussed further, however, at the next pretrial conference, which is scheduled for October 15, 2013, at 11:00 a.m.

2. Motion to exclude evidence suggesting that Lauritzen or the College Personnel Committee ("the CPC") had received or were aware of Siring's May 24, 2010, letter to Jaeger and to prohibit Plaintiff's counsel from suggesting or implying that evidence of such awareness exists


Defendant moves to exclude evidence or argument suggesting that Lauritzen or the CPC knew about Plaintiff's May 24, 2010 letter objecting to age discrimination before the meeting of the CPC that took place at noon on May 24, 2010. Defendant argues that Plaintiff mailed the letter on May 24, 2010, so the CPC could not have seen it before noon on May 24, 2010. Defendant argues that because Plaintiff does not have personal knowledge of when the letter was received, Plaintiff should be prevented from speculating about that matter under FRE 602. Defendant further argues that this evidence should be excluded under FRE 403.

In response, Plaintiff states that she faxed the letter on the morning of May 24, 2010. Indeed, Defendant's witness Jaeger testified during deposition that the letter was faxed on the morning of May 24, 2010. Because of this factual dispute, Plaintiff argues that she is entitled to present these facts to the jury and each side may argue for appropriate inferences. The Court agrees. In addition, there is no basis for exclusion under FRE 403.

3. Motion to exclude evidence and argument that a fourth-year review of Plaintiff's progress ...

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