United States District Court, D. Montana, Billings Division
P. WATTERS, UNITED STATES DISTRICT JUDGE
the Court is Yellowstone County's motion in limine. (Doc.
52). Yellowstone County seeks to exclude evidence of a
Veterans' Employment and Training Service (VETS)
investigation and report and evidence of whether Chenoweth
should be reinstated or awarded front pay. (Doc. 52 at 1-2).
For the following reasons, the Court grants in part and
denies in part the motion.
Chenoweth was hired as a deputy sheriff by Yellowstone County
on June 9, 2014. (Doc. 14 at 2). Chenoweth was an enlisted
member with the National Guard. (Doc. 14 at 2). On April 29,
2015, Chenoweth told his supervisor at the Yellowstone County
Sheriffs Office that he had a training commitment with the
National Guard from May 2-7, 2015. (Doc. 14 at 2; Doc. 42-4
at 4). Yellowstone County terminated Chenoweth's
employment on May 1, 2015, citing poor performance. (Doc. 14
reported his termination to the Department of Labor, Veteran
Employment and Training Service division (VETS). VETS
conducted an investigation into Chenoweth's termination
and concluded Chenoweth's membership with the National
Guard was a motivating factor in Yellowstone County's
termination of his employment. (Doc 42-4 at 13). VETS
recommended the Department of Justice file a lawsuit on
Chenoweth's behalf to recover damages caused by the
termination. (Doc. 37-3). After the Department of Justice
declined to represent Chenoweth, he retained private counsel
and filed this action under the Uniformed Services Employment
and Reemployment Rights Act (USERRA) and the Montana Military
Service Employment Rights Act (MMSERA). (Docs. 2; 37-3).
in limine are procedural devices to obtain an early and
preliminary ruling on the admissibility of evidence. Judges
have broad discretion when ruling on motions in limine.
Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664
(7th Cir. 2002). A motion in limine should not be used to
resolve factual disputes or weigh evidence. C &E
Services, Inc., v. Ashland Inc., 539 F.Supp.2d 316, 323
(D.D.C. 2008). To exclude evidence on a motion in limine
"the evidence must be inadmissible on all potential
grounds." Ind. Ins. Co. v. K-Mart Corp., 326
F.Supp.2d 844, 846 (N.D. Ohio 2004). Courts have wide
discretion in considering and ruling on motions in limine.
See Luce v. U.S., 469 U.S. 38, 41 n.4 (1984).
County argues the VETS report must be excluded because it is
irrelevant, more prejudicial than probative, and incomplete
because it contains redactions. Chenoweth responds other
district courts have admitted VETS reports as both relevant
and probative. Chenoweth further states the redactions relate
to information provided to VETS by Yellowstone County or its
agents and Yellowstone County therefore has the means to
discover the redacted information.
relevant evidence is admissible. Fed.R.Evid. 402. Evidence is
relevant if it has any tendency to make a fact more or less
probable than it would be without the evidence and the fact
is of consequence in determining the action. Fed.R.Evid.
401(a-b). Relevant evidence may be excluded if its probative
value is substantially outweighed by, among other things,
unfair prejudice. Fed.R.Evid. 403. The Rule 403 balancing
inquiry is made on a case-by-case determination, requiring an
examination of the surrounding facts, circumstances, and
issues. United States v. Lloyd, 807 F.3d 1128, 1152
(9th Cir. 2015). A district court's Rule 403
determination is subject to great deference. Lloyd,
807 F.3d at 1152.
reports or letters are often admitted in employment lawsuits
because they are both relevant and highly probative.
Plummer v. Western Intern. Hotels Co., Inc., 656
F.2d 502, 505 (9th Cir. 1981). Other district courts have
admitted VETS reports exactly the same as the one at issue
here. Quinn v. Everett Safe & Lock, Inc., 53
F.Supp.3d 1335, 1339 (W.D. Wash. 2014); Ruiz v.
Fernandez, 949 F.Supp.2d 1055, 1063 (E.D. Wash. 2013).
But the Ninth Circuit has warned against admitting
investigative reports that make a conclusive finding of
liability. Amantea-Cabrera v. Potter, 279 F.3d 746,
749 (9th Cir. 2002). A report that makes only a preliminary
determination that the employer might be liable is usually
not unduly prejudicial because it does not suggest to the
jury that the agency has already determined the issue of
liability. Gilchrist v. Jim Slemons Import, Inc.,
803 F.2d 1488, 1500 (9th Cir. 1986). On the other hand, a
report that represents a conclusive determination of
liability presents a much greater risk of prejudice because
the jury may find it difficult to independently evaluate the
claim in light of the agency's liability determination.
Gilchrist, 803 F.2d at 1500; see also
Amantea-Cabrera, 279 F.3d at 749.
similar to other district courts and employment law cases,
the Court holds the VETS report is both relevant and highly
probative of Chenoweth's claim because it contains useful
factual findings that tend to corroborate or conflict with
one or both of the parties' timelines and version of
events. However, the VETS report also contains conclusive
determinations of liability that present a serious risk of
prejudicing the jury. The VETS report states "Those
facts conclusively reveal that Mr. Chenoweth's military
service was a motivating factor when he was terminated on May
1, 2015" and "The facts clearly show that Mr.
Chenoweth's military service was a motivating factor when
he was terminated from the Yellowstone County Sheriffs Office
on May 1, 2015." (Doc. 42-4 at 5 and 13). Under
Gilchrist, the Court holds the proper remedy is to
admit the VETS report under the condition the two
determinations of liability are redacted. Further, although
not raised by either party, the Court holds the portion
titled "Evaluation of Damages" must be redacted
because it is outdated and may confuse the jury and the
portion titled "Settlement Posture" must be
redacted because it violates Rule 408's exclusion of
settlement evidence. The portion of the report that states
"Litigation is recommended," does not need to be
redacted because it is only a preliminary determination that
Yellowstone County may be liable.
County also requests the VETS report be excluded under Rule
106 because it contains redactions and is therefore
incomplete. If the Court declines Yellowstone County's
request, Yellowstone County asks in the alternative that it
be allowed to introduce the Department of Justice's
letter declining to represent Chenoweth. The Court declines