Beran v. VSL N. Platte Court LLC

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KATRINA BERAN, Plaintiff, v. VSL NORTH PLATTE COURT LLC, Defendant.

No. 7:21CV5003

United States District Court, D. Nebraska

May 5, 2023

MEMORANDUM AND ORDER REGARDING THE PARTIES' MOTIONS IN LIMINE

Brian C. Buescher United States District Judge

Plaintiff Katrina Beran's remaining claims of sexual harassment in violation of Nebraska and federal employment laws are set for trial beginning May 9, 2023. In anticipation of trial, both Beran and defendant VSL North Platte Court, LLC, d/b/a Linden Court (Linden Court), have filed Motions in Limine. See Filing 48 (Linden Court's motion); Filing 50 (Beran's motion). For the reasons stated below, both Motions are granted in part and denied in part.^[1]

I. BACKGROUND

As explained in more detail in the Court's Memorandum and Order Regarding Defendant's Motion for Summary Judgment Filing 40,^[2] on March 25, 2019, Linden Court hired Beran as a Certified Nurse Assistant (CNA). Linden Court is a fully staffed skilled nursing and rehabilitation facility for the elderly, providing a full range of care from minimal assistance to 24-hour skilled nursing care, including specialized care for residents with Alzheimer's disease or related dementias. Filing 40 at 2. Counts VII and VIII of Beran's Second Amended Complaint, Filing 25-the only Counts remaining after the Court's summary judgment ruling-allege hostile work environment sex discrimination in violation of 42 U.S.C § 2000e-2 and Neb. Rev. Stat. § 48-1004 respectively, based on unwelcome sexual conduct toward Beran by a fellow CNA, Chris Eugene. Filing 25 at 9-10 (¶¶ 47-56). In her statement of facts in opposition to Linden Court's Motion for Summary Judgment, Beran asserted that this claim is based on allegations about Eugene touching or pinching her “bottom” or “butt” on January 25, 2020; three incidents on January 26, 2020, involving Eugene telling her that it is a man's job to lift a resident, Eugene pushing her up against the wall and groping her breasts, and Eugene grabbing and refusing to let go of her hand; an incident on January 27, 2020, involving Eugene refusing to work and then telling Beran to cool her hormones and take her rag out; and another incident on January 27, 2020, in which Eugene elbowed Beran hard in the chest. Filing 34 at 19 (¶ 16). Filing 34 at 10 (¶ 58); see also Filing 34 at 8-10 (¶¶ 52-61) (describing the incidents on January 25 through 27, 2022). Beran also alleges that she was aware that Eugene had inflicted similar conduct on other women at Linden Court. Filing 34 at 10 (¶ 58); Filing 34 at 19 (¶ 17).

II. LEGAL ANALYSIS

In its Motion in Limine, Linden Court seeks exclusion of four categories of evidence at trial. Filing 48 at 1-2. In her Motion in Limine, Beran seeks exclusion of three categories of evidence at trial. Filing 50 at 1. The primary bases for exclusion of all these categories of evidence are Federal Rules of Evidence 401, 402, and 403. In addition, two of the three categories of evidence that Beran seeks to exclude implicate Rule 404(b) concerning bad-acts evidence. Thus, the Court begins with a summary of the standards for admissibility of evidence under these rules, although other evidentiary rules or standards may also apply to specific categories of evidence.

A. Admissibility Standards

1.Relevance and Prejudice Standards

“Federal Rule of Evidence 401 says that ‘[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.'” Williams v. Baum, 48 F.4th 571, 573 (8th Cir. 2022) (quoting Fed.R.Evid. 401). “Under Federal Rule of Evidence 402, evidence that is not relevant- that is, having ‘any tendency to make' the existence of any fact that is of consequence to the determination of the action ‘more or less probable than it would be without the evidence,' see Fed.R.Evid. 401-is not admissible.” United States v. Finley, 56 F.4th 1159, 1167 (8th Cir. 2023).

Even if evidence is otherwise relevant and admissible, “Federal Rule of Evidence 403 . . . permits the district court to exclude [it] ‘if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.'” United States v. Dozier, 31 F.4th 624, 628 (8th Cir.) (quoting Fed.R.Evid. 403), cert. denied, 143 S.Ct. 237 (2022). “Rule 403 does not offer protection against evidence that is merely prejudicial in the sense of being detrimental to a party's case. The rule protects against evidence that is unfairly prejudicial.” United States v. Wright, 993 F.3d 1054, 1061 (8th Cir. 2021) (citation omitted; emphasis in the original). Evidence excludable under Rule 403, then, is “the kind of evidence that ‘divert[s] the jury's attention from the material issues in the trial'” and does not aid the jury in determining any matter at issue. United States v. Mink, 9 F.4th 590, 604 (8th Cir. 2021) (quoting Wright, 993 F.3d at 1061), cert. denied, 142 S.Ct. 1166 (2022). Thus, for example, evidence may be excluded pursuant to Rule 403 if its probative value is “outweighed by the risk of distraction in conducting mini trials on the detailed facts underlying” the specific matter the evidence addresses. United States v. Battle, 774 F.3d 504, 514 (8th Cir. 2014). A trial court's exclusion of evidence under Rule 403 is entitled to substantial deference “so long as the trial court's exercise of discretion ‘[does] not unfairly prevent a party from proving [its] case.'” United States v. Woods, 978 F.3d 554, 566 (8th Cir. 2020) (quoting Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706, 716 (8th Cir. 2001)).

2.Bad-Acts Evidence Standards

Rule 404(b) provides,

(b) Other Crimes, Wrongs, or Acts.

(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

Fed. R. Evid. 404(b)(1)-(2). Although the rule is cast in terms of evidence of bad acts of “a person,” it is most often discussed in relation to bad acts of a defendant. See, e.g., United States v. Brandon, 64 F.4th 1009, 1020 (8th Cir. 2023) (discussing the rule in terms of inadmissibility of bad acts evidence “to show the defendant's propensity to commit crimes”); but see McGuire v. Cooper, No. 8:16CV4, 2018 WL 3935053, at *2-3 (D. Neb. Aug. 16, 2018) (applying Rule 404(b) to bad acts of the plaintiff and third-party witnesses without articulating specific standards). Hence, the Eighth Circuit Court of Appeals has recognized that evidence is properly admitted under Rule 404(b) if “(1) it is relevant to a material issue; (2) it is similar in kind and not overly remote in time to the crime charged; (3) it is supported by sufficient evidence; and (4) its potential prejudice does not substantially outweigh its probative value.” Id. at 1020-21 (citation omitted). The second consideration of “similarity in kind” seems to this Court to have particular weight when the evidence is offered to show a defendant's motive for the wrongful conduct he or she is charged with committing. On the other hand, it seems to the Court to have little or no weight when the evidence involves a plaintiff's bad acts used for a purpose permitted under Rule 404(b)(2). The parties have not cited and the Court has not found a decision of the Eighth Circuit Court of Appeals addressing the proper test for admissibility of evidence of a plaintiff's bad acts.

However, the First Circuit Court of Appeals uses a two-part test to determine admissibility under Rule 404(b), which this Court finds is equally applicable to bad acts of either a plaintiff or a defendant, instead of the Eighth Circuit's four-part test, which is most applicable to a defendant's bad acts. See Gonpo v. Sonam's Stonewalls & Art, LLC, 41 F.4th 1, 5 (1st Cir. 2022). The first part asks whether the bad-act evidence has “special relevance,” such as relevance to one of the reasons stated in the non-exhaustive list in Rule 404(b)(2). Id. The second part asks if the first part is satisfied whether the evidence can “clear the strictures of Rule 403.” Id. This test appears to this Court to address appropriately the limits on admissibility of bad-acts evidence under Rule 404(b) in the circumstances at issue in this case.

With these standards in mind, the Court turns to consideration of the parties' Motions in Limine, beginning with Beran's Motion.

B. Beran's Motion in Limine

In her Motion in Limine, Beran seeks exclusion of the following categories of evidence at trial: (1) evidence of unrelated and remote prior work incidents or discipline regarding Beran's performance or character; (2) evidence of the circumstances surrounding and reasons given for Beran's termination of employment; and (3) evidence that Beran brought other claims that were voluntarily or involuntarily dismissed. Filing 50 at 1. The Court will consider the admissibility of these categories of evidence in turn.

1.Evidence of Incidents of Beran's Performance or Character

Beran identifies Rule 401, 402, 403, and 404 as relevant to her first category of evidence. First, she asserts that Linden Court is expected to present its Exhibit 106 regarding what she characterizes as an “unfounded” complaint of racial bias made against her by another coworker. Filing 51 at 1. Linden Court agrees the information in its Exhibit 106 is not relevant to Beran's sexual harassment claim, so...