Prior to filing the above-entitled action, Plaintiff filed an administrative charge of discrimination. Pursuant to a work-sharing agreement between the United States Equal Employment Opportunity Commission (“EEOC”) and the Civil Rights Division of the Arizona Attorney General's Office (“ACRD”), the charge was dual-filed with the EEOC and ACRD, and investigated by the ACRD. On January 3, 2012, the ACRD issued a dismissal of the charge, stating:

(Doc. 156 at 8.) On February 9, 2012, the EEOC adopted the ACRD's findings and closed its file on Griffiths' charge. (Id. at 10.)

In her Motion in Limine Regarding ACRD Dismissal (Doc. 156), Plaintiff argues that evidence of the dismissal of her administrative charge should be precluded because it is only marginally relevant and its probative value is outweighed by the risk of prejudice and confusion. Defendant argues that the administrative decision has high probative value and should be considered per se admissible under Ninth Circuit law pertaining to EEOC probable cause determinations.[2]

*2 Under Ninth Circuit precedent, an EEOC probable cause determination is considered per se admissible in a Title VII lawsuit, because its high probative value outweighs any prejudicial effect it may have on a jury. See Plummer v. Western Int'l Hotels Co., 656 F.2d 502, 504-05 (9th Cir. 1981). However, not all administrative determinations are per se admissible. For example, the admissibility of EEOC letters of violation is left to the discretion of the district court due to a higher potential for prejudicial impact. SeeGilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1500-01 (9th Cir. 1986).

The administrative dismissal at issue in this case has less probative value and greater potential for prejudice and confusion than the probable cause determination at issue in Plummer. Without additional information regarding the agency's underlying findings and reasoning, it is unclear how much probative value the agency's dismissal has on the issue of whether Defendant violated Title VII. A jury, however, is likely to understand the ACRD's finding as a conclusive determination that no violation occurred.[3] The jury will likely find it difficult to independently evaluate the evidence and reach its own conclusion regarding whether a Title VII violation occurred, if it is informed that the ACRD already evaluated the evidence and found it insufficient to establish a violation. Cf. Gilchrist, 803 F.2d at 1500 (“A jury may find it difficult to evaluate independently evidence of age discrimination after being informed that the EEOC has already examined the evidence and found a violation”). Because the probative value of the evidence is substantially outweighed by the likelihood of prejudice and confusion, the Court will grant Plaintiff's Motion in Limine Regarding ACRD Dismissal.

Plaintiff moves to exclude evidence that she could have reported Abrams' conduct to the State Bar of Arizona and/or the Commission on Judicial Conduct of the Arizona Supreme Court, arguing that it is legally improper for Defendant to rely on such evidence in an effort to show failure to mitigate compensatory damages. Defendant concedes that such evidence cannot be used to argue that Griffiths failed to mitigate compensatory damages. Defendant asserts, however, that the evidence is relevant on other theories, namely to rebut testimony from Plaintiff regarding why she didn't report Abrams' conduct to Defendant sooner, and to show when Defendant could have had notice of Abrams' conduct. The Court agrees that evidence regarding Plaintiff's opportunity to report Abrams' conduct to the State Bar and/or the Commission on Judicial Conduct is relevant for the limited purpose of rebutting Griffiths' testimony concerning why she did not report Abrams' conduct to Defendant sooner. However, Defendant has not shown how Griffiths' professional obligation to report the conduct is relevant under this theory.

In support of its theory that evidence of Griffiths' opportunity and obligation to report Abrams' conduct is relevant to the issue of notice, Defendant argues that, had Griffiths fulfilled her professional obligation to report the conduct, Defendant “would have had the opportunity to ensure Abrams was prevented from further harassing Griffiths.” (Doc. 170 at 3-4). This argument is an attempt to use the evidence to prove Griffiths failed to mitigate her compensatory damages, which Defendant concedes is improper. (See Id. at 2).

*3 The Court will allow Defendant to introduce evidence of Griffiths' opportunity to report Abrams' conduct to the State Bar of Arizona and the Commission on Judicial Conduct, for the limited purpose of rebutting testimony from Griffiths concerning why she did not report Abrams' conduct to Defendant sooner. However, Defendant is precluded from introducing evidence of Griffiths' professional obligation to report Abrams' conduct, as Defendant has not shown such evidence is relevant under any permissible theory.

Plaintiff also seeks to preclude evidence of the Arizona Supreme Court's 1992 Administrative Order adopting a sexual harassment policy applicable to the judiciary branch in Arizona. The Court agrees with Defendant that, if Plaintiff argues that Defendant's sexual harassment policy was insufficient, Defendant should be allowed to introduce the 1992 Administrative Order in rebuttal.

Defendant argues that Plaintiff spoliated evidence by (1) failing to preserve all voicemail and text messages exchanged between herself and Abrams, and (2) failing to preserve her cell phone itself. Defendant asks the Court to sanction Plaintiff by giving the jury an adverse inference instruction related to evidence regarding the exchange of text messages, phone calls, and/or voicemail messages between Plaintiff and Abrams. Plaintiff argues that an adverse inference instruction is inappropriate because there is no evidence that she failed to preserve evidence at a time when litigation was anticipated, nor any evidence that she acted with a culpable mind.

After Plaintiff reported Abrams' conduct to Defendant in October 2010, the text and voicemail messages on her cell phone were transcribed. It is undisputed that the transcribed messages do not represent the entire body of messages exchanged between Plaintiff and Abrams. Plaintiff admits that she intentionally deleted messages prior to reporting Abrams' conduct, but she denies doing so at a time when she anticipated litigation and she further denies selectively deleting messages harmful to her litigation position. Plaintiff also claims that some messages were automatically deleted by her cell phone due to storage capacity issues. Plaintiff admits that she ultimately lost track of her cell phone sometime after reporting Abrams' conduct to Defendant, but she claims that she did so inadvertently and not for purposes of denying Defendant access to information on the phone.

“Spoliation is the destruction or material alteration of evidence, or the failure to otherwise preserve evidence, for another's use in litigation.” Surowiec v. Capital Title Agency, Inc., 790 F. Supp. 2d 997, 1005 (D. Ariz. 2011). A party seeking sanctions for spoliation must prove three elements:

Id. (internal quotations omitted). In the present case, there is little if any dispute that the destroyed evidence was relevant. Whether spoliation occurred thus hinges on whether the evidence was destroyed at a time when Plaintiff had an obligation to preserve it, and whether Plaintiff acted with a culpable state of mind. These are heavily fact-dependent questions.

*4 The Court will take the matter under advisement and will reserve ruling on Defendant's request for an adverse inference instruction until after the presentation of evidence at trial. Both parties may introduce evidence relevant to the issue of potential spoliation, and both parties may argue inferences from that evidence to the jury.

Elizabeth “Denise” Leyva served as Abrams' judicial assistant for two years, until receiving a court file from Abrams with a post-it note on it that read: “Love, Ted.” Leyva took the note to her supervisor and was thereafter reassigned out of Abrams' courtroom and replaced with a male clerk. In opposing Defendant's motion for summary judgment, Griffiths relied in part on evidence related to Leyva's reassignment to show that Defendant had constructive knowledge of Abrams' sexually harassing conduct.

Sara Dent is a former assistant City prosecutor. In her exhibit list, Griffiths has identified email messages sent between Abrams and Dent from February and March 2009, which contain sexual comments. According to Defendant, Dent told an investigator that she did not report Abrams' conduct to anyone. Dent was not deposed during discovery in this case.

In its Motion in Limine Regarding Allegations of Harassment and/or Other Bad Acts Related to Denise Leyva, Sara Dent and/or Other Witnesses (Doc. 160), Defendant argues that evidence related to Abrams' conduct toward Leyva and Dent should be precluded as irrelevant and prejudicial. Specifically, Defendant argues that the evidence related to Leyva is irrelevant to the issue of whether Defendant had actual or constructive notice of Abrams' sexually offensive behavior, because not even Leyva herself perceived the “Love, Ted” note as sexually harassing. (Doc. 160 at 4-5.) The City also argues that the evidence related to Leyva is irrelevant due to its temporal remoteness, as it occurred four years before Griffiths alleges Abrams began sexually harassing her. (Id. at 6-7.) The City further argues that the evidence is irrelevant because Leyva was not similarly situated to Griffiths, since she worked directly for the municipal court instead of for the Public Defender's Office. (Id. at 7.) The City argues that the evidence related to Dent is irrelevant to the issue of whether the City had actual or constructive notice of Abrams' sexually offensive behavior, because Abrams made sexual comments to Dent in a private manner and Dent did not tell anyone about the comments. (Id. at 5-6.) The City also argues that, even if the Court determines that the evidence related to Leyva and/or Dent is relevant, it should nevertheless be precluded because its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, and waste of time.

Plaintiff has identified no evidence indicating that Defendant had actual or constructive knowledge of any sexual comments made by Abrams to Dent. Without such evidence, the communications are irrelevant to the issue of notice and, even if marginally relevant, the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Accordingly, the Court will grant Defendant's Motion with respect to evidence of communications between Abrams and Dent.

*5 However, evidence of the circumstances surrounding Leyva's reassignment from Abrams' courtroom is relevant, because it has some tendency to make it more likely that Defendant was on actual or constructive knowledge of Abrams' propensity to engage in sexually harassing conduct. The jury is entitled to resolve factual disputes concerning this evidence.[5] The evidence is not so temporally remote, and Leyva is not so dissimilarly situated, to render the evidence irrelevant. The probative value of the evidence is not outweighed by the danger of unfair prejudice, confusion of the issues, or waste of time.

IT IS ORDERED:

At the Final Pretrial Conference held on January 7, 2016, Defendant withdrew its Motion in Limine to Bar Testimony and Evidence Regarding Calculation of Damages (Doc. 158).

Defendant also argues that evidence of the dismissal of Plaintiff's administrative charge is independently admissible under Rule 803(8)(c) of the Federal Rules of Evidence. As there is no Rule 803(8)(c) in the current Rules of Evidence, the Court assumes that Defendant is referring to the portions of Rule 803(8) which provide that, in a civil case, a record or statement of a public office should not be precluded as hearsay if it sets out “factual findings from a legally authorized investigation” and the opponent does not show a lack of trustworthiness. Fed. R. Evid. 803(8)(A)(iii), (B). Plaintiff does not argue that evidence of the dismissal of her administrative charge should be precluded as hearsay. Defendant's argument concerning independent admissibility under Rule 803 seems to assume that evidence is automatically admissible if it qualifies under an exception to the rule against hearsay. That assumption is incorrect. All evidence must be relevant in order to be admissible, and even relevant evidence may be precluded if its probative value is substantially outweighed by a danger of unfair prejudice, confusion, waste of time, etc. See Fed. R. Evid. 402, 403. While Rule 802's prohibition against hearsay may provide an independent basis for preclusion of evidence that would otherwise satisfy Rules 402 and 403, escaping the rule against hearsay through an exception delineated in Rule 803 does not provide an independent ground for admission of evidence that fails to satisfy Rules 402 or 403.

Though the ACRD's notice of dismissal contains some qualifying language declining to certify statutory compliance, a jury is still likely to understand the notice of dismissal to be a conclusive determination that Plaintiff's evidence is insufficient to establish a violation; the jury is likely to disregard the language declining to certify statutory compliance as legalese.

Though the title of Defendant's Motion refers to “Other Witnesses,” the Motion focuses exclusively on evidence related to Leyva and Dent.

The City argues that Leyva did not interpret the “Love, Ted” note as sexual harassment, and that this should end the inquiry of admissibility. There are factual disputes concerning how Leyva reacted to the “Love, Ted” note. Further, whether Leyva subjectively perceived the note to constitute sexual harassment is not dispositive; the issue is whether the note and the evidence surrounding Leyva's reassignment shows that the City knew or should have known of Abrams' propensity to engage in sexual harassment. That issue is for the jury to decide.