Sherman v. The Regents of University of California

Background

The court held a pretrial conference on May 6, 2022, and resolved the parties’ motions in limine, which are requests to decide before trial whether particular evidence may be presented to the jury.

Plaintiffs’ motions

Motion No. 1: Evidence of the dispute with Adel Atta

The plaintiffs sought to exclude evidence about Benjamin Hammoudeh’s grade dispute with lecturer Adel Atta at San Jose State University, related allegations and a police report, and social-media posts about the dispute. The Regents argued that the evidence was relevant to Hammoudeh’s credibility, emotional-distress damages, motivations, intentions, and knowledge of university complaint processes.

The court granted the motion. It ruled that the dispute, which involved a different educational institution during the 2014–15 academic year, was not relevant to any claim or defense in this case. The Regents could not introduce exhibits or testimony about the dispute, although an exhibit was not automatically inadmissible merely because it mentioned Adel Atta in passing.

Motion No. 2: Evidence regarding Majdy Wardah

The plaintiffs sought to exclude evidence about Hammoudeh’s interactions with Majdy Wardah, including a small-claims action and writings on a website. The Regents argued that the evidence was relevant to Hammoudeh’s credibility, motivations, and emotional-distress damages.

The court granted the motion. It ruled that evidence about Hammoudeh’s dispute with Wardah or the related website was not relevant to any claim or defense. The Regents could not introduce exhibits or testimony regarding Hammoudeh and Wardah.

Motion No. 3: Evidence of the plaintiffs’ conduct

The plaintiffs sought to exclude evidence about their conduct at the University of California, Santa Cruz, including sexualized language and swear words used in academic research or classroom settings. The Regents argued that some of this evidence could show that the alleged conduct by Professor Achlioptas was not unwelcome and did not cause the claimed harm or emotional distress.

The court granted the motion in part and denied it in part. It barred evidence of casual expletives and mildly derogatory language unrelated to the alleged harassment. For example, the Regents could not use certain exhibits solely to show that Benjamin Sherman used an expletive, called himself a “moron,” or discussed white privilege. But the Regents could introduce evidence of either plaintiff’s sexualized language or innuendo when it was used in a relevant context, such as academic research, and Achlioptas participated in or knew about the communication. The court gave as an example an email that could bear on whether Sherman found Achlioptas’s sexualized communications offensive and whether he experienced emotional distress.

Motion No. 4: The Regents’ training and policies

The plaintiffs sought to exclude evidence about the University’s training of staff, students, and Professor Achlioptas concerning sexual harassment and other policies. They argued that the evidence was irrelevant and could improperly shift attention to whether the plaintiffs reported harassment sooner.

The court denied the motion. It ruled that the existence of policies and training concerning sexual harassment, and the University’s efforts to prevent and address that harassment, was relevant to the Regents’ defense.

Motion No. 5: Hammoudeh’s comments about his marriage

The plaintiffs sought to exclude particular statements Hammoudeh made about his wife and marriage. The Regents argued that the evidence could show that the alleged harassment was not the sole cause of his emotional distress, that Achlioptas’s conduct was not unwelcome, and that living apart from his wife was not as emotionally distressing as Hammoudeh claimed.

The court granted the motion. It understood that the statement at issue predated Hammoudeh’s interactions with Achlioptas and therefore was not relevant to his claim that he experienced emotional distress after leaving the graduate program because of the University’s response. The court noted that evidence about Hammoudeh’s relationship with his wife during the relevant period might be relevant, depending on the basis of his damages claim.

The Regents’ motions

Motion No. 1: Evidence of alleged damages

The Regents sought to exclude evidence of the plaintiffs’ economic and noneconomic damages because the plaintiffs provided supplemental interrogatory responses after the court-ordered deadline. The plaintiffs argued that the delay was harmless and substantially justified, in part because lead counsel had been seriously ill with COVID-19.

The court denied the motion. The Regents conceded that they suffered no prejudice from the delay, and the court concluded that excluding the evidence was not warranted.

Motion No. 2: Post-deposition expert opinions

The Regents sought to bar new opinions at trial from the plaintiffs’ economist, Nora Ostrofe, and vocational expert, John Berg, if those opinions had not been disclosed or discussed during their depositions. The plaintiffs stated that the experts did not intend to offer opinions beyond their written disclosures and deposition testimony.

The court denied the motion as moot.

Motion No. 3: Investigation records and reports

The Regents sought to exclude records and reports from Title IX and University Faculty Code of Conduct investigations. They argued that the reports were irrelevant, contained improper legal conclusions or hearsay, and could confuse the jury. The plaintiffs argued that the reports were relevant to what the Regents knew about the complaints and whether its response was reasonable.

The court denied the motion, subject to limitations. It explained that factual findings in investigative reports concerning Professor Achlioptas could be admissible under the public-record exception to the hearsay rule, although individual statements within the reports could still be excluded as hearsay. Portions of reports about Sherman’s retaliation claim involving Professor Sgourakis and Hammoudeh’s retaliation claim involving Professor Warmuth could also be admitted for the purposes described by the plaintiffs. The plaintiffs could not use those reports to prove that Sgourakis or Warmuth themselves harassed or retaliated against the plaintiffs, because those claims were not at issue.

Motion No. 4: Other Title IX complaints or investigations

The Regents sought to exclude evidence about Title IX investigations unrelated to the plaintiffs, including evidence involving other complainants and faculty or staff. The plaintiffs said they did not seek to introduce such evidence affirmatively, except potentially for impeachment or to address a witness’s credibility or bias.

The court granted the motion as unopposed. The plaintiffs could not introduce evidence of Title IX investigations involving other complainants or complaints against other faculty or staff.

Motion No. 5: “Stray remarks” by Professor Achlioptas

The Regents sought to exclude remarks Achlioptas allegedly made to people other than the plaintiffs. The plaintiffs argued that such evidence could show what they reported to the Regents and what the Regents knew when responding to their complaints.

The court granted the motion, subject to limitations. The plaintiffs could not introduce the specific remarks identified in the Regents’ motion. The court found that the record did not show that the remarks were about the plaintiffs, known to them, or known to appropriate University officials, and that nearly all were unrelated to the plaintiffs’ complaints. The court distinguished that evidence from evidence properly offered to show the University’s knowledge of Achlioptas’s complained-of conduct and whether it acted with deliberate indifference.

Motion No. 6: Evidence related to adjudicated claims

The Regents sought to exclude evidence concerning research-misconduct allegations against Sherman, actions involving his thesis, alleged pay disparity, alleged discrimination against Sherman, and alleged harassment of the plaintiffs by Achlioptas. The Regents argued that the remaining claims focused on whether the University had actual knowledge of harassment and responded with deliberate indifference, rather than on whether the underlying events occurred.

The court granted the motion in part and denied it in part. The plaintiffs could not introduce evidence supporting claims dismissed after summary judgment. However, they could introduce evidence of Achlioptas’s conduct because the Regents did not concede that the conduct failed to amount to sufficiently severe, pervasive, and offensive harassment, and because that evidence would help the jury evaluate whether the University’s response was clearly unreasonable in light of all known circumstances.