Pham v. Board of Regents UCSF

Background

The Regents of the University of California and Dr. Brian Bast filed their third motion in limine, which is a request to limit or exclude evidence at trial. They asked the court to exclude evidence that four other employees—Dr. Dennis Song, Tina Valaris, Annamarie Abrantes-Li, and Dr. Mark Crane—complained about various problems and then allegedly experienced adverse treatment. The defendants argued that Dr. Pham should not be allowed to use this evidence to establish a pattern of retaliation.

The Ninth Circuit had previously stated that the record contained evidence that other department employees experienced negative treatment after complaining to their supervisor about fraud and mismanagement. The district court therefore separately considered the circumstances of the four identified employees. The court reviewed the parties’ motion-in-limine briefing, offers of proof, summary-judgment materials, appellate briefing, and a prior decision involving Dr. Song.

Court’s analysis

The court treated the proposed evidence as “me too” evidence—evidence about other employees that may help show motive or intent rather than merely a person’s character. The court explained that whether such evidence is relevant depends on how closely it relates to the plaintiff’s circumstances and legal theory. The court also applied Federal Rule of Evidence 403, which permits exclusion when the evidence’s usefulness is substantially outweighed by risks such as confusing the issues, causing undue delay, or wasting time.

The court excluded evidence about Dr. Crane. Dr. Crane complained that Dr. Bast was not evaluating faculty according to University bylaws, while Dr. Pham complained that Dr. Perkins’s actions were unsafe. The court also found that Dr. Pham had not sufficiently connected the end of Dr. Crane’s volunteer appointment to Dr. Bast. The court noted that Dr. Pham did not contest its tentative decision to exclude this evidence.

The court allowed evidence about Tina Valaris. Valaris testified that, shortly before she was terminated, she reported concerns to Dr. Bast about timecard fraud and money that she believed should be refunded to patients and possibly the government. The court found that, like Dr. Pham, Valaris described making a protected complaint followed by an adverse employment action. The court concluded that her evidence was relevant to Dr. Bast’s motive or intent concerning the reduction of Dr. Pham’s employment from 50% full-time equivalent to 40%.

The court excluded evidence about Annamarie Abrantes-Li. She testified that she reported suspected timecard fraud and that coworkers told her she was performing her job incorrectly. But she also testified that she was never terminated, disciplined, or demoted. The court found her circumstances significantly different from Dr. Pham’s and noted that her complaint concerned Dr. Bast’s alleged inaction. The court also determined that presenting her evidence would require a mini-trial about the coworkers’ comments, whether she had complained to Dr. Bast, and whether the conduct was an adverse employment action. Even if the evidence had some relevance, Rule 403 supported excluding it.

The court also excluded evidence about Dr. Dennis Song. Song testified that, less than two months after emailing Dr. Bast about concerns involving patient safety, clinic organization, and student training, Dr. Bast told him that his faculty appointment would not be renewed. But a prior decision by Judge Saundra Brown Armstrong had determined, as a matter of law, that the University and Dr. Bast did not retaliate against Song for his complaints. Although Song appealed and the matter settled on appeal, Judge Orrick found that the prior decision was persuasive and that Song’s circumstances were not closely related to Dr. Pham’s. The court also found that admitting the evidence would create another mini-trial, confuse the issues, waste time, and present a danger of unfair prejudice.

Ruling

Judge Orrick concluded that the evidence about Valaris was sufficiently related to Dr. Pham’s circumstances and theory of retaliation to be admitted. The court concluded that the evidence concerning Crane, Abrantes-Li, and Song was not sufficiently related and was also barred by Rule 403.

The court denied the defendants’ third motion in limine regarding the “me too” evidence about Valaris. It otherwise granted the motion. This was an evidentiary ruling about what could be presented at trial, not a decision on whether Dr. Pham ultimately proved retaliation.