Judge: Theresa M. Traber, Case: 21STCV43746, Date: 2023-10-30 Tentative Ruling

Case Number: 21STCV43746    Hearing Date: October 30, 2023    Dept: 47

Tracy Sheen v. Concentra Inc., Case No. 21STCV43746

TENTATIVE RULINGS ON CERTAIN MOTIONS IN LIMINE

Plaintiff’s MIL # 1:  seeking to exclude any evidence, testimony, or argument regarding Plaintiff’s prior lawsuit against her former employer. 

TENTATIVE RULING:  GRANTED. 

The Court agrees with Plaintiff that evidence of her prior lawsuit should be excluded as improper character evidence under Evidence Code § 1101 and as unduly prejudicial, confusing and time-consuming under Evidence Code § 352.  In Lowenthal v. Mortimer (1954) 125 Cal. App. 2d 636, 643, our Court of Appeal reversed a jury verdict in favor of defendant, based on an improper ruling allowing evidence on 15 prior lawsuits in which the plaintiff and her husband were involved.  The appellate court ruled that these lawsuits were irrelevant to the issue of plaintiff’s alleged negligence in the case that was tried, not probative of any “nervousness” on plaintiff’s part in confronting the situation that led to the recent accident, and improper and prejudicial as a means of attacking the credibility of the plaintiff.  (Id., at pp. 340-342.)  The same must be said here.  Evidence of Plaintiff’s prior lawsuit has no probative value in assessing the strength or credibility of her claims here and does nothing to undercut or bolster her credibility in making those claims.

Defendants argue that the prior lawsuit should be admitted as evidence of a “pattern of ‘crying wolf’ and of manufacturing claims,” that it is admissible under subdivision (b) of Evidence Code §1101 to show Plaintiff’s motive, intent, or plan to use litigation to secure financial gain rather than to assert valid complaints about discrimination and retaliation.  Defendants also contend that Plaintiff’s prior lawsuit demonstrates her knowledge of what she needs to prove in this case and her scheme to create false evidence to bolster her claims.  The Court is not persuaded by these arguments.  That Plaintiff lost a previous lawsuit for discrimination against a prior employer says nothing about the righteousness of her claims here.  Nor can it be said that it reflects a “plan” or “scheme” on Plaintiff’s part since evaluating such a pattern necessarily involves an objective assessment of the underlying misconduct being alleged in each case as much as Plaintiff’s subjective evaluation of her employment circumstances.  Further, Plaintiff’s efforts to assert her rights under protective legislation like the FEHA should not be undermined by allowing Defendants to disparage her “intent” or “motive” to enforce those rights against multiple employers as somehow nefarious or improper. 

As an alternative basis for admission, Defendants urge the Court to permit evidence of Plaintiff’s prior lawsuit to prove that her emotional distress arising from Defendants’ alleged misconduct in 2018  through November 2020, was in fact generated as a result of her difficulties with her previous employer in the years leading up to her 2012 and 2013 administrative complaints against the County of Los Angeles. This is simply not plausible.  Plaintiff’s alleged misconduct by the County is sufficiently remote in time from the misconduct asserted against Defendants that it cannot be said that any pre-2012 misconduct would have been an alternate, pre-existing impetus for Plaintiff’s current emotional injuries.  Certainly, Defendants have pointed to no evidence supporting their contention that Plaintiff’s experience with the County contributed in any way to the emotional distress damages she claims to have suffered in this case. 

Finally, even if there were some minimal probative value to be ascribed to Plaintiff’s prior lawsuit, the Court would exclude the evidence under Evidence Code § 352 because its scant relevant is starkly outweighed by the prejudice Plaintiff would suffer by being pegged as a litigious employee, the confusion the jury would experience in wondering how to assess Plaintiff’s prior work experience in ruling on this case, and the waste of time and resources that would be necessary to explore Plaintiff’s complaints in the prior case to compare and contrast them with those in this case.    

Plaintiff’s MIL # 2:  seeking to exclude any evidence, testimony, or argument regarding claims or parties no longer at issue. 

TENTATIVE RULING:  GRANTED IN PART, as to any claims against any other parties, but DENIED IN PART, as to evidence mentioning Select Medical in documents and other evidence, subject to Plaintiff’s right to object to specific evidence offered at trial. 

Defendants’ MIL #3:  seeking to exclude improper “me too” evidence.

TENTATIVE RULING:  DENIED IN PART, as to testimony by Stacy Duncan, Andree Leroy, M.D., and part of the proposed testimony of Wendy-Ann Sylvester, M.D., GRANTED IN PART in that the Court will hold a Evidence Code § 402 hearing on the admissibility of Dr. Sylvester’s testimony about disciplinary actions, including probation and termination, taken against her, and deferred as to evidence about the employment circumstances of Sonia Knight, Jan Guy, and Sherica. 

“California courts have held so-called ‘me too’ evidence, that is, evidence of . . . bias against employees other than the plaintiff, may be admissible evidence in discrimination and harassment cases. (See Pantoja [v. Anton (2011)] 198 Cal. App. 4th 87, 129 Cal. Rptr. 3d 384; Johnson v. United Cerebral Palsy/Spastic Children's Foundation (2009) 173 Cal.App.4th 740, 93 Cal.Rptr.3d 198 (Johnson).) The relevance of evidence concerning conduct toward nonparty employees is inherently ‘”fact based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case.”’ (Johnson, supra, at p. 767, 93 Cal.Rptr.3d 198.) ‘[S]imilar considerations are involved in balancing the probative value of the evidence against its prejudicial effect.’ (Ibid.) ‘Me too’ evidence is therefore not subject to any per se rule of exclusion, and may be admissible to prove a defendant's motive or intent even where the conduct occurred outside the plaintiff's presence and at times other than when the plaintiff was employed. (Pantoja, supra, at pp. 115-116, 129 Cal.Rptr.3d 384; see also Sprint/United Mgmt. Co. v. Mendelsohn (2008) 552 U.S. 379, 381, 388, 128 S.Ct. 1140, 170 L.Ed.2d 1 [evidence that employer discriminated against employees other than plaintiff ‘is neither per se admissible nor per se inadmissible,’ and instead ‘requires a fact-intensive, context-specific inquiry’].)”  (Meeks v. Autozone, Inc. (2018) 24 Cal. App. 5th 855, 871.) 

In her complaint, Plaintiff alleges that, acting largely through its District Medical Officer, Kaochoy Saechao, Defendant denied Plaintiff work hours, reduced her hours, denied her transfer, and placed her on probation, after being put on a Performance Improvement Plan.  (Complaint ¶¶ 25-46, 55.)  She also asserts that Dr. Saechao “micromanaged, belittled, and disrespected” her.  (Id., ¶ 32.)  To support her contention that Defendants, and particularly Dr. Saechao, acted with discriminatory intent because of her race, African American, Plaintiff seeks to offer “me too” evidence from other Black health professionals who were supervised by Dr. Saechao and believed he discriminated against and mistreated them because of their race. 

In her declaration, Stacy Duncan, a Black female Physician Assistant, asserts that Dr. Saechao took steps to take her off the schedule, move her to a location where she would not have the opportunity to conduct COVID testing, deny her a position in downtown Los Angeles, and treated her in an unprofessional and demeaning manner.  (Exh. A, Duncan Decl., ¶¶ 12, 17-18, 24-25, 27-32.)  Ms. Duncan stated the Dr. Saechao treated “many people poorly, but especially Black employees.” (¶ 33.)  Contrary to Defendants’ argument, the clear inference from Duncan’s declaration is that she considered herself on of the Black employees who was subjected to Dr. Saechao’s “especially” poor treatment because of her race.  Further, her mistreatment occurred in the same time frame as Plaintiff’s, was similar in kind to that experienced by Plaintiff, and was spearheaded by the same alleged wrongdoer.  While the Court will entertain objections about hearsay, foundation, and other evidentiary concerns, the Court finds Ms. Duncan’s anticipated testimony to be admissible. 

Just as with Plaintiff’s and Duncan’s complaints, Andree Leroy, a Black female doctor, complained in her declaration about Dr. Saecho’s “disrespectful behavior to Black women under his direction,” including Dr. Leroy, his abrupt decree that she be transferred to a less attractive clinic assignment and refusal to reverse that transfer, and Dr. Leroy’s decision as a result of her mistreatment to resign her full-time position.  (Exh. B, Leroy Decl., ¶¶ 1-3, 10, 12-15, 18-19, 31.)  Dr. Leroy also testified to her belief that Dr. Saecho “denied [her] employment opportunities base on [her] race during [her] time with USHW/Concentra.”  (Id., ¶ 31.)  Again, while Defendants may assert objections to certain questions posed to Dr. Leroy, the Court finds her testimony to be proper “me too” evidence.  It addresses the discriminatory biases of Dr. Saecho – the same supervisor who allegedly plagued Plaintiff’s employment experience – his disrespectful treatment and negative decision-making about transfers and assignments in the same time frame relevant to Plaintiff’s claims.  That he would treat a Black female physician in the same manner as Plaintiff does not undermine its probative value.  To the contrary, it accentuates Dr. Leroy’s negative biases, even against health providers with full medical degrees and licensing.

According to her Superior Court complaint, Dr. Wendy-Ann Sylvester alleges that Dr. Saecho “micromanaged, belittled and disrespected” her and subjected her to a wave of criticisms and discipline, and ultimately placed her on probation and terminated her.  (Exh. D.)  Dr. Sylvester’s employment tenure overlaps with Plaintiff’s and, like Plaintiff, she targets her supervisor, Dr. Saecho, with a long list of discriminatory misconduct.  Certainly, her testimony about his belittling and disrespectful conduct is relevant to Plaintiff’s contention that Dr. Saecho acted with discriminatory intent.  While both Dr. Syvester and Plaintiff were given disciplinary notices or, in Plaintiff’s case, a Performance Improvement Plan and placed on probation, the nature of the alleged deficiencies that led to these deleterious actions would appear to be quite different for a physician like Dr. Sylvester, as compared to Plaintiff.  Thus, before Dr. Sylvester could testify more broadly about the negative actions taken against her, the Court would hold a hearing under Evidence Code § 402 to examine the similarities between circumstances of Plaintiff and Dr. Sylvester. 

Plaintiff’s evidence about Sonia Knight, Jan Guy and Sherica appears to be subject to exclusion based on a lack of personal knowledge by Plaintiff or Duncan and/or on hearsay grounds, so the Court cannot evaluate its admissibility as valid “me too” evidence offered to demonstrate Defendants’ discriminatory intent.  Accordingly, the Court defers any ruling on the motion in limine on that ground until it is presented with otherwise admissible evidence of these employee’s employment experiences. 

Defendants’ MIL #4:  seeking to exclude evidence related to other lawsuits or settlements involving defendants.

TENTATIVE RULING:  GRANTED IN PART AND DENIED IN PART. 

While the litigation process of the lawsuit brought against Defendants by Wendy-Ann Sylvester, M.D., is likely to be wholly irrelevant to any issue in this action, some of the underlying conduct complained of by Dr. Sylvester may be admissible, as explained above, to demonstrate Defendants’ discriminatory intent.  Further, to the extent that Dr. Sylvester can testify she made complaints about Dr. Saecho or about other objections she lodged to her mistreatment, these actions may be admissible to prove that Defendants had notice of Dr. Saecho’s misconduct and failed to remedy it.  Such evidence is plainly admissible to support Plaintiff’s failure to prevent claim.