1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANNE KIRKPATRICK, Case No. 20-cv-05843-JSC

8 Plaintiff, ORDER FOLLOWING PRETRIAL 9 v. CONFERENCE

10 CITY OF OAKLAND, CALIFORNIA, Re: Dkt. Nos. 112, 113, 116, 117, 118, 119, 11 Defendant. 136, 137

12 13 The Court held a Pretrial Conference in this matter on April 28, 2022. This Order 14 confirms the matters discussed at the Conference and addresses additional trial matters. 15 I. Motions in Limine 16 For purposes of Plaintiff’s Labor Code retaliatory discharge claim, Plaintiff must prove by 17 “a preponderance of the evidence, that retaliation for an employee’s protected activities was a 18 contributing factor” in the decision to terminate her. Lawson v. PPG Architectural Finishes, Inc., 19

(2022). If she does so, “the burden shifts to the [City] to demonstrate, by 20 clear and convincing evidence, that it would have taken the action in question for legitimate, 21 independent reasons even had the plaintiff not engaged in protected activity.”

When courts 22 “refer to a same-decision showing, we mean proof that the employer, in the absence of any 23 discrimination, would have made the same decision at the time it made its actual decision.” 24 Harris v. City of Santa Monica,

(2013) (emphasis in original). Likewise, for 25 her First Amendment claim, the question is whether “the relevant speech was a substantial or 26 motivating factor in the adverse employment action.” Barone v. City of Springfield, Or.,

(9th Cir. 2018). As such, information that was unknown to the Police Commission or 1 discussed at the pretrial conference, such evidence may be relevant to damages, but the Court will 2 address that issue separately at the May 12 further pretrial conference. With this legal framework 3 in mind, the Court rules as set forth at the pretrial conference and below. 4 A. Plaintiff’s Motions in Limine 5 1. MIL 1 to Exclude Warshaw Documents and Certain Testimony (Dkt. No. 112) 6 Plaintiff’s motion to exclude all evidence or argument related to Robert Warshaw that the 7 Police Commissioners or Mayor were not aware of prior to their decision to terminate Plaintiff is 8 GRANTED. Unless the Police Commissioners or Mayor testify that they were aware of 9 Plaintiff’s complaints regarding Mr. Warshaw, evidence of the complaints is irrelevant or, to the 10 extent there is some limited relevance, its probative value is substantially outweighed by its 11 likelihood to confuse and/or mislead the jury and prejudice Plaintiff. Exhibits B and C are 12 therefore excluded. (Ex. B (Dkt. Nos. 111-2 at 56), Ex. C (Dkt. No. 111-2 at 59). 1) However, 13 Plaintiff may open the door to the use of these exhibits by denying that she ever believed that Mr. 14 Warshaw played a role in the termination of her employment. 15 The City does not intend to offer Exhibit I. (Ex I. (Dkt. No. 111-2 at 61).) Exhibit D is 16 excluded except as to the first two paragraphs. (Ex. D (Dkt. No. 114-1 at 60).) Exhibit E is 17 excluded except that it may come in as to damages (in which case Trial Exhibits 451, 452, and 18 453) may also be relevant. (Ex. E. (Dkt. No. 114-1 at 62).) The parties shall consider the Court’s 19 question regarding phasing damages and be prepared to discuss their positions at the further 20 pretrial conference on May 12. 21 2. MIL 2 to Exclude Job Posting Documents and Testimony (Dkt. No. 113) 22 Plaintiff’s motion to exclude evidence of the City’s Chief of Police job posting and 23 testimony is DENIED. (Ex. H (Dkt. No. 114-1 at 117).) The job posting is one piece of evidence 24 regarding the scope of the Chief’s job duties. It is not akin to the broad generic job description at 25 issue in Garcetti v. Ceballos,

(2006). 26 27 1 3. Plaintiff’s Trial Brief Request to Exclude Brendon Woods 2 Plaintiff moves to exclude Brendon Woods from testifying because the City did not 3 identify him on its Amended GO 71 disclosures and did not provide a description of his testimony 4 until after the motion in limine deadline. If, after the discussion at the pretrial conference, the City 5 still intends to call Brendon Woods, the City must make an offer of proof regarding his testimony. 6 The Offer of Proof must be provided to Plaintiff and filed on the docket by May 11, 2022. 7 B. The City’s Motions in Limine 8 1. MIL 1 to Exclude Mr. Finnell and Mr. Alden’s Testimony (Dkt. No. 116) 9 The City seeks to preclude Mr. Finnell from testifying at trial. Mr. Finnell was the interim 10 director of the Oakland Community Police Review Agency (“CPRA”) who was terminated by the 11 Police Commission over a year before Plaintiff. In a footnote, the City also asks to exclude 12 evidence that Mr. Finnell’s successor, Mr. Alden, was likewise terminated by the Police 13 Commission in March 2022. (Dkt. No. 116 at 6.) 14 Plaintiff contends that evidence of Mr. Finnell and Mr. Alden’s terminations is admissible 15 to prove motive or intent under Federal Rule of Evidence 404(b)(2). That is, that evidence of 16 their terminations provides circumstantial evidence of retaliatory motive in this case because as 17 Plaintiff, Mr. Finnell and Mr. Alden were terminated shortly after reporting Police Commissioner 18 misconduct. There has, however, been no determination that either Mr. Finnell or Mr. Alden were 19 terminated because they reported misconduct—to the contrary, the City argues that both were 20 terminated for performance-related issues. Thus, evidence of their terminations would require a 21 trial within this trial to show that they were, or were not, terminated in retaliation for 22 whistleblowing activity. Any probative value is thus outweighed by its prejudicial value and, in 23 particular, confusing the issues and undue delay. See Fed. R. Evid. 403. Further, the Police 24 Commission members who supported Mr. Alden’s termination were not even on the Commission 25 at the time of Plaintiff’s termination; thus, Mr. Alden’s termination does not provide relevant 26 circumstantial evidence of retaliatory motive. 27 Plaintiff’s insistence that Mr. Finnell’s testimony will be short is of no moment. His 1 for a complaint as opposed to, for example, his telling Commissioner Harris he was “tired of your 2 shit,” than this case can fairly be decided based on Plaintiff’s “short” testimony alone. (Dkt. No. 3 121, Finnell Depo. 36:18-37:12.) The cases on which Plaintiff relies do not persuade the Court 4 otherwise. As Plaintiff conceded at the hearing, none of the cited cases involved allowing “me 5 too” evidence to prove a claim of unlawful termination in retaliation for whistleblowing activity. 6 While Goldsmith v. Bagby Elevator Co.,

(11th Cir. 2008), involved a racial 7 discrimination retaliation claim, the court affirmed admission of the “me too” evidence of four 8 other employees as relevant to the plaintiff employee’s claim of hostile work environment, to 9 rebut the employer’s “good faith” defense by showing that its antidiscrimination policy was 10 ineffective, and as probative of intent of the common decisionmaker involved in termination of 11 plaintiff and these other four employees.

. Only the last reason is relevant to this 12 case, but in Goldsmith there were four other employees terminated by the same single 13 decisionmaker. These facts are not close to the circumstances of the proffered testimony here. See 14 also Heyne v. Caruso,

(9th Cir. 1995) (plaintiff sought to introduce testimony 15 from five other female employees who alleged they were sexually harassed); Stallworth v. Nike 16 Retail Servs., Inc.,

, at *3-4 (C.D. Cal. Dec. 1, 2021) (allowing evidence that 17 five other employees complained of racial discrimination by the same individual). Allowing Mr. 18 Finnell to testify would result in a distracting and potentially time-consuming mini-trial as to the 19 validity of his contentions regarding his termination, and any probative value of his testimony is 20 substantially outweighed by the undue prejudice. 21 Accordingly, the City’s MIL No. 1 is GRANTED. 22 2. MIL 2 to Preclude Plaintiff from Calling Certain Witnesses (Dkt. No. 117) 23 The City seeks to exclude testimony from five witnesses that Plaintiff has identified as 24 having knowledge regarding her job performance: Nancy O’Malley, Bobby Hookfin, Eric Milina, 25 Sekou Millington, and Bishop Bob Jackson. The City insists their testimony is irrelevant since 26 none of these individuals was a decisionmaker with respect to Plaintiff’s termination and any 27 probative value to their testimony would be outweighed by the prejudice. 1 That is true only if they testify about information regarding Plaintiff’s performance of which the 2 Police Commissioners or Mayor would have been aware prior to the termination decision—just as 3 with the evidence regarding Mr. Warshaw. See Harris,

. If Plaintiff contends 4 that they will testify to information known to the Mayor or the Police Commissioners, she must 5 make an offer of proof to this effect. With respect to Nancy O’Malley, to the extent that she 6 intends to testify regarding Plaintiff’s handling of the Pawlik shooting, such testimony is only 7 relevant if she shared her perceptions with the Mayor or Police Commissioners prior to Plaintiff’s 8 termination. 9 The City’s MIL No. 2 is GRANTED without prejudice to Plaintiff making an offer of 10 proof as discussed above. Any such offer of proof must be shared with Defendant and filed on the 11 docket by May 11, 2022. 12 3. MIL 3 to Exclude the Audit Report and Auditor Testimony (Dkt. No. 118) 13 The City seeks to exclude the City Auditor’s Audit Report of the Oakland Police 14 Commission and the Community Police Review Agency (Dkt. 124 at 90) on relevance and 15 hearsay grounds. Measure LL, which created the Police Commission, required the City Auditor to 16 evaluate the Police Commission and CPRA’s progress in meeting their mandates no later than two 17 years after the first set of Commissioners were confirmed. The Audit came out in June 2020, three 18 months after Plaintiff’s termination. The City also seeks to preclude the City Auditor from 19 testifying on the grounds that she has not been identified as an expert and she has no relevant 20 percipient testimony to offer. 21 The Audit is not relevant to Plaintiff’s Section 1102.5(b) or First Amendment claims 22 except for the finding that the Police Commission was required by municipal ordinance to conduct 23 a performance review of the Chief of Police, but it did not so do. (Dkt. No. 124 at 117-118.) This 24 statement is non-hearsay under Fed. R. Evid. 801(d)(2). The City’s objection to the Auditor’s 25 testimony is overruled as follows. The Auditor can testify that Measure LL requires the Auditor to 26 conduct an evaluation of the Commission annually. She conducted that evaluation, and as part of 27 it found that the Commission did not evaluate the performance of the Chief as required. However, 1 relevant to Plaintiff’s claims. The Auditor can also testify as a percipient witness to receipt of 2 Plaintiff’s complaints and what she did with them. Finally, the Auditor can testify regarding the 3 function and structure of the Police Commission. 4 Accordingly, the City’s MIL No. 3 is GRANTED IN PART and DENIED IN PART. 5 4. MIL 4 to Exclude Testimony from Ms. Dibley and Ms. Hom (Dkt. No. 119) 6 The City moves to preclude two City employees—Allison Dibley and Stephanie Hom— 7 from testifying regarding their experiences with the Police Commission. This motion is moot as 8 Plaintiff indicates that she does not intend to call either Ms. Dibley or Ms. Hom as witnesses. 9 Accordingly, the City’s MIL No. 4 is DENIED WITHOUT PREJUDICE to renewal should 10 Plaintiff call either witness. 11 II. Other Matters 12 A. Issues Raised in the Parties’ Trial Briefs 13 The Court will not reopen discovery to allow Plaintiff to take additional depositions or to 14 allow discovery into the School Incident. The Court also declines to exclude evidence of the 15 School Incident. 16 For purposes of Plaintiff’s First Amendment claim, the City has not waived presentation of 17 a defense under the Pickering v. Bd. of Ed. of Twp. High Sch. Dist.,

, (1968), 18 balancing test. Plaintiff can point to no case where a defendant was precluded from presenting 19 evidence under the Pickering balancing test at trial because it was not pled as an affirmative 20 defense. 21 For purposes of Monell liability, given the information currently before the Court, the 22 Mayor and the Police Commission jointly made the decision to terminate Chief Kirkpatrick. That 23 the Mayor could have made the decision on her own is not relevant since that is not what 24 happened here. 25 With respect to the two legal issues that the Court must decide: (1) was Plaintiff’s speech 26 on a matter of public concern, and (2) whether Plaintiff must identify the law or rule she contends 27 was violated as part of her case-in-chief, Plaintiff shall file her briefs on these issues on May 4 and 1 B. Jury Selection 2 The Jury Office will include the parties’ case-specific questions in their juror 3 questionnaire. (Dkt. No. 134.) The Court will provide the parties with the survey responses on 4 || May 11, 2022. The parties should be prepared to discuss the survey responses at the further 5 pretrial conference on May 12, 2022. The parties have stipulated to excuse unvaccinated jurors 6 (fewer than two shots). The Court will seat 9 jurors and all jurors will deliberate. 7 C. Trial Schedule 8 The trial day will be from 8:30 a.m. to approximately 3:00 p.m., which includes a 45- 9 minute lunch break. There will be no trial on May 19 and on May 20 trial will go 8:30 a.m. to 10 1:30 p.m. with no lunch break. Counsel shall arrive at 8:00 a.m. every day to discuss any 11 issues/objections outside the presence of the jury. Each side has 15 hours for direct and cross 12 || examination. Opening statements are limited to 45 minutes per side. Any limitations on closing 5 13 arguments will be discussed closer to the trial’s end. 14 D. Further Pretrial Conference 3 15 The Court sets a further pretrial conference for May 12, 2022 at 2:00 p.m. in Courtroom 8, a 16 || 450 Golden Gate Ave., San Francisco, California. The parties may set up their courtroom 3 17 technology following the pretrial conference. 18 This Order disposes of Docket Nos. 112, 113, 116, 117, 118, 119, 136, 137. 19 IT IS SO ORDERED. 20 Dated: May 3, 2022 Sut 22 mm ACQUELINE SCOTT CORL 23 United States District Judge 24 25 26 27 28