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excluding testimony of witnesses not first identified under Rule 26(e)
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Case No. 03-2066-KHV.
July 30, 2004
Anne W. Schiavone, Kansas City, MO, R. Denise Henning, Stephen R. Bough, Henning Bough, PC, Kansas City, MO, for Plaintiff.
Malcolm R. Burns, Lawrence, KS, Lori R. Schultz, Stinson Morrison Hecker LLP, Kansas City, MO, for Defendant.
MEMORANDUM AND ORDER
Plaintiff Maxine Mehus, head volleyball coach at Emporia State University ("ESU"), alleges that ESU has violated the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d), and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. Specifically, plaintiff alleges that ESU has paid her less than similarly situated male counterparts for equal work which requires similar effort, skill and responsibility, performed under similar working conditions, in violation of the EPA. Plaintiff also claims that in violation of Title VII, ESU subjected her to different terms, conditions and privileges of employment than similarly situated male colleagues by (1) providing her a ten-month appointment while providing 12-month appointments to similarly situated males; (2) requiring her to teach while not requiring similarly situated males to do so; and (3) paying her less than similarly situated males for equal work which requires substantially similar skill, effort and responsibility. This matter comes before the Court onPlaintiff's Motion In Limine (Doc. #118) filed July 14, 2004. For reasons stated below, the Court sustains plaintiff's motion in part.
1. Findings And Conclusions Of The Grievance Committee
Plaintiff asks the Court to preclude evidence of internal Grievance Committee findings with regard to her sex discrimination charge, but permit evidence about the existence of the Grievance Committee, its recommendations that ESU better define its "core athletics programs," evaluate all job descriptions associated with coaching staff over a three-year period, write new job descriptions for all coaches and offer 12-month contracts to all coaches who are expected to recruit during summer months. Plaintiff also seeks to admit evidence that ESU ignored the Grievance Committee recommendations. ESU asks the Court to exclude any reference to the Grievance Committee because such evidence lacks relevance and may confuse and mislead the jury.
The Court finds that all findings and recommendations of the Grievance Committee should be excluded. On this record, it appears that such findings and recommendations constitute nothing more than the lay opinion of randomly selected faculty members and other individuals who concluded (among other things) that plaintiff's claim of sex discrimination was without merit. It is not clear that the Grievance Committee had any authority to recommend general changes in the administration of the athletics department at ESU, and the fact that ESU ignored the Grievance Committee recommendations has no apparent relevance in this case. Likewise, the fact that the Grievance Committee recommended better definition of "core athletics programs," re-evaluation of coaching staff job descriptions, and new job descriptions for coaches has no apparent relevance to the issues in this case. The Grievance Commission recommendation that ESU offer 12-month contracts to all coaches who are expected to recruit during summer months has slight relevance, but it is outweighed by dangers of confusion of the issues, undue delay and waste of time under Rule 403, Fed.R.Evid.
2. Exhibits For Which Proper Foundation Cannot Be Laid
Plaintiff generally asks the Court to exclude exhibits for which proper foundation cannot be laid. The Court agrees that as a general matter, such evidence should be excluded. As is usually the case, however, the devil is in the details. Plaintiff specifically asks the Court to exclude communications in which individuals who are not agents or employees of ESU criticize plaintiff's coaching performance. Plaintiff argues that (1) the documents are hearsay and do not constitute business records of ESU or fall within any other hearsay exception, see Rules 801-804, Fed.R.Evid.; (2) the communications cannot be authenticated because the authors have not been identified as trial witnesses; and (3) the prejudicial impact of the communications outweighs their probative value.
The Court finds that regardless whether the communications are truthful, their very existence and content maybe relevant to plaintiff's damage claim for emotional distress. The complaints were apparently communicated to plaintiff, and "[t]he case law recognizes that a plaintiff claiming emotional distress opens the door to evidence of other probable causes of her distress."Rettiger v. IBP, Inc., No. 96-4015-SAC, 1999 WL 318153, at *2 (D. Kan. Jan 06, 1999); see also, York v. Am. Tel. Tel. Co., 95 F.3d 948, 957-58 (10th Cir. 1996). If the significance of an offered statement lies in the fact that the statement was made, rather than the truth of anything asserted, the statement is not hearsay. See Advisory Committee Notes to Rule 801(c), Fed.R.Evid. (citing Emich Motors Corp v. General Motors Corp., 181 F.2d 70 (7th Cir. 1950) rev'd on other grounds 340 U.S. 558 (1951) (letters of complaint from customers held not to be hearsay)).
ESU apparently seeks to offer these communications to also establish that "plaintiff's public relations failures make her less marketable and justify a discrepancy in her wages." Use for these purposes assumes the truth of the matters asserted, i.e. that for the reasons stated in the communications, plaintiff did not have good public relations with the authors or other members of the public.
The Court must therefore determine whether the communications are hearsay and, if so, whether they fall within any exception to the hearsay rule. On this record, it cannot do so. Under the business records exception to the hearsay rule, hearsay documents may be offered into evidence so long as the documents (1) were made or transmitted by a person with knowledge at or near the time of the incident recorded, and (2) were prepared and kept in the course of a regularly conducted business activity. Fed.R.Evid. 803(6). The Court cannot discern whether either requirement is met as to the communications in question.
In order for ESU to lay an appropriate foundation that the documents were made or transmitted by a person with knowledge at or near the time of the incident recorded, ESU would presumably need to call as witnesses the authors of the communications. None of the authors have been properly disclosed under Rule 26, Fed.R.Civ.P. ESU argues that its default is justified because under the Advisory Committee Notes to Rule 26(e), a party has no obligation to provide "supplemental or corrective" information that has been otherwise made known to the parties in writing or during the discovery process. Rule 26(e), however, assumes that Rule 26(a) disclosures have been made. It addresses a party's duty to supplement Rule 26(a) disclosures to recite "information thereafter acquired" and "corrective information that has not otherwise been made known to the other parties during the discovery process or in writing." ESU's argument is that by disclosing a document, it has sufficiently disclosed its intent to "call the authors as witnesses at trial to authenticate the complaint documents." This argument has two problems: (1) it is not the law; and (2) even if the authors are allowed to "authenticate" the communications and thus avert what ESU calls an exaltation of "form over substance," mere authentication will not suffice to lay an appropriate foundation for purposes of the hearsay rule.
If ESU has a different strategy for laying a foundation which is sufficient to establish the admissibility of these documents which does not depend on the testimony of the authors, the Court will consider that matter at trial.
The Court cannot find, on this record, that ESU had substantial justification for failing to disclose the authors as witnesses in this case. Moreover, its failure is obviously not harmless. Plaintiff had no reason to depose witnesses whom defendant did not identify, and she has not had an opportunity to cross-examine the writers of the communications. Accordingly, the Court finds that testimony from these individuals should be excluded under Rule 37(c)(1). Unless ESU can independently lay a foundation for these exhibits at trial, they will be excluded as evidence of the truth of the matters asserted therein. Because the communications are relevant to plaintiff's damage claim without regard to the truth of the matters asserted, the Court overrules plaintiff's motion on this point.
3. Player Criticism Of Plaintiff's Volleyball Expertise And Technical Skills
Plaintiff asks the Court to exclude player criticism of her volleyball expertise, coaching abilities and technical skills, arguing that players are not qualified to testify on this topic and that any relevant evidence must come solely from experienced coaches. The Court disagrees. Plaintiff's argument lacks merit because (a) many aspects of coaching performance may be fairly analyzed and evaluated without expert testimony as that term is defined by Fed.R.Evid. 702; and (b) players have the requisite experience and specialized knowledge to opine as to plaintiff's coaching ability. Rule 701, Fed.R.Evid., allows lay persons to testify to opinions that are "(a) rationally based on the perceptions of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Plaintiff's motion on this point is overruled.
4. Testimony Of Dr. Mark Stanbrough
Plaintiff seeks to exclude the testimony of Dr. Mark Stanbrough, Chair of the Health, Physical Education and Recreation Department, because ESU did not timely disclose his identity or the nature of his testimony. ESU admits that it did not disclose Dr. Stanbrough in its initial or supplemental Rule 26 disclosures, but argues that its failure is harmless because "[p]laintiff has been well aware for some time that Dr. Stanbrough occupied a position at issue in this case."
On this record, however, the Court cannot find that ESU had substantial justification for failing to disclose Dr. Stanbrough or that its failure is harmless. As noted, plaintiff had no reason to depose witnesses whom defendant did not identify. Her knowledge that "Dr. Stanbrough occupied a position at issue in this case" is no substitute for compliance with Rule 26. Dr. Stanbrough's testimony is therefore excluded under Rule 37(c)(1).
5. Testimony Of Shawn Shoemaker
Plaintiff asks the Court to preclude the testimony of Shawn Shoemaker, an individual who did not hold the position of Interim Athletic Director, because ESU did not timely disclose his identity or the nature of his testimony. ESU acknowledges that it did not disclose this witness in either its initial or supplemental Rule 26 disclosures, but argues that its default is harmless because "[p]laintiff has been well aware for some time that Mr. Shoemaker is a person with knowledge in this matter." Plaintiff's motion is sustained for reasons stated above, with regard to Dr. Stanbrough.
6. Testimony Of Jessica Stambaugh
Plaintiff moves the Court for an order precluding testimony from Jessica Stambaugh, who will purportedly testify that plaintiff "served a volleyball at [a] player's head after the player just had a concussion." Plaintiff argues that ESU did not timely disclose the identity of this witness or the nature of her testimony. ESU again admits that it did not disclose this witness in its initial or supplemental Rule 26 disclosures, but it insists that its failure is harmless because "[p]laintiff has been well aware for some time that Ms. Stambaugh is a person with knowledge in this matter regarding the physical and emotional abuse that ESU volleyball players are subjected to at [p]laintiff's hands." For reasons stated with regard to Dr. Stanbrough and Shawn Shoemaker, plaintiff's motion is sustained as to Jessica Stambaugh.
7. Argument Or Comment Regarding Pleadings
Plaintiff asks the Court to direct that ESU be precluded from commenting on or inquiring into the allegations or claims contained in the pleadings, especially the fact that she dismissed the Title IX and Title VII hostile work environment counts of the complaint. ESU agrees that references to the fact of these claims, and evidence relevant solely to these claims, should be excluded. Plaintiff's motion on this issue is sustained. If defendant wishes to refer to pleadings, it shall initially do so outside the hearing of the jury so the Court will have an opportunity to further rule on this issue.
8. Argument Or Comment Regarding Filing Motions And Exclusion Of Evidence
Plaintiff moves the Court for an order prohibiting defense counsel from commenting on or inquiring into the contents or disposition of plaintiff's motion in limine, and instructing that no comment or inquiry suggest to the jury that plaintiff has moved to prohibit certain proof or that the Court has excluded proof of any particular matter. ESU agrees that no witness or counsel should make references to such matters, and plaintiff's motion on this issue is sustained.
9. Offers Of Settlement Or Offers Of Partial Settlement And Responses Thereto
Plaintiff asks the Court to prohibit any reference to settlement. ESU does not oppose plaintiff's motion, and it is sustained.
10. Evidence Regarding Income And Losses From Gambling
Plaintiff asks the Court to prohibit any reference to her gambling winnings and losses because they are irrelevant and any probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence under Fed.R.Evid.403. ESU argues that plaintiff's gambling losses — which obviously are large in relation to her salary — are relevant to her claim for damages for emotional distress. The Court agrees. Through her damage claim, plaintiff has made such evidence relevant. Any concern that jurors could take a "dim view" of gambling may be addressed in the jury selection process. Plaintiff's motion on this point is overruled.
11. Financial Condition Of The State Of Kansas And/Or Emporia State University
Plaintiff moves the Court for an order prohibiting ESU from presenting evidence or commenting on the financial condition of the State of Kansas and/or Emporia State University because it is irrelevant and their poor financial condition cannot justify the financial disparity between plaintiff's salary and the salaries of other ESU coaches. ESU responds that its budget and financial condition are relevant to the operations and funding of the Athletic Department and the decisions which it has made with respect to coach salaries and raises. The Court finds that the financial condition of the University, particularly as it affects the Athletic Department, is relevant to issues whether ESU discriminated against plaintiff by (1) providing her a ten-month appointment while providing 12-month appointments to similarly situated males; (2) requiring her to teach while not requiring similarly situated males to do so; and (3) paying her less than similarly situated males for equal work which requires substantially similar skill, effort and responsibility. The legitimate non-discriminatory reasons which ESU has advanced are ones which necessarily play out against a backdrop of limited financial resources. While the jury does not need to know every detail of ESU's financial condition, some understanding of this issue will be necessary. This aspect of plaintiff's motion is therefore overruled.
12. Evidence That A Monetary Judgment Would Be Paid From Taxpayers Dollars
Plaintiff moves the Court for an order prohibiting any reference to the fact that a monetary judgment would ultimately be paid from taxpayer dollars. ESU has no intention of arguing this issue to the jury. Plaintiff's motion is therefore sustained on this issue.
IT THEREFORE ORDERED that Plaintiff's Motion In Limine (Doc. #118) filed July 14, 2004 be SUSTAINED as to paragraphs 1, 4, 5, 6, 7, 8, 9 and 12 and OVERRULED as to paragraphs 3, 10 and 11. As to paragraph 2, defendant may not use evidence of communications in which individuals criticize plaintiff's coaching performance to prove the truth of the matters asserted. Defendant may, however, offer such evidence with regard to plaintiff's damage claim.
IT FURTHER ORDERED that the parties confer in good faith to resolve all outstanding objections to witnesses, exhibits and deposition testimony, based on the rulings contained in this order. The Court will not entertain any such objections unless and until the parties have attempted in good faith to resolve the dispute among themselves either in person or via telephone conference. If any objections remain after such conference, the objecting party shall notify the Court no later than one business day before trial.
Plaintiff Maxine Mehus, head volleyball coach at Emporia State University ("ESU"), alleges that ESU has violated the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d), and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. Specifically, plaintiff alleges that ESU has paid her less than similarly situated male counterparts for equal work which requires similar effort, skill and responsibility, performed under similar working conditions, in violation of the EPA. Plaintiff also claims that in violation of Title VII, ESU subjected her to different terms, conditions and privileges of employment than similarly situated male colleagues by (1) providing her a ten-month appointment while providing 12-month appointments to similarly situated males; (2) requiring her to teach while not requiring similarly situated males to do so; and (3) paying her less than similarly situated males for equal work which requires substantially similar skill, effort and responsibility. This matter comes before the Court on Emporia State University's Motion In Limine (Doc. #125) filed July 14, 2004. For reasons stated below, the Court sustains defendant's motion in part.
1. Inequitable Funding Of Volleyball Program
ESU argues that the Court should exclude any reference to its alleged violation of Title VII by providing the volleyball team fewer resources than the basketball and football teams because plaintiff abandoned this claim. Plaintiff agrees that evidence relating to inequitable funding is inadmissible, but argues that evidence relating to her opportunity to raise revenue through ticket and program sales is an integral part of her Title VII claim. ESU responds that if plaintiff is allowed to testify regarding her opportunity to raise revenue for the volleyball program, the Court should allow Emporia State to call Lamar Daniels to testify regarding ESU's compliance with Title IX.
ESU justifies the pay disparity between the volleyball, football and basketball coaches by arguing that the "male counterparts . . . have jobs that require more or different skill, effort, supervision, and responsibility" and "[t]he revenue raised by the football and basketball teams through ticket sales, donations, and advertising help Emporia State University field other athletic teams." Pretrial Order (Doc. #105) filed April 12, 2004. Evidence that ESU denied plaintiff the opportunity to raise revenue through ticket and program sales is therefore relevant to the stated reason for the pay disparity. Title IX has nothing to do with this, and a properly instructed jury will not be misled into finding for plaintiff based on a feared misperception that ESU is a "bad actor" because it does not adequately promote women's athletics.
2. Non-Compliance With Title IX
ESU asks the Court to exclude any reference to its alleged noncompliance with Title IX because plaintiff has dismissed her claims under 20 U.S.C. § 1681 et seq. and 34 C.F.R. § 106.1et seq. (Title IX). Plaintiff does not intend to present evidence of Title IX violations and this portion of the motion is therefore sustained.
3. Hostile Work Environment At ESU
ESU asks the Court to exclude any reference to a hostile work environment because plaintiff dismissed her hostile work environment claims under Title VII and Title IX. See Pretrial Order (Doc. # 105) at 16(a) (Plaintiff's Theories of Recovery). Plaintiff does not oppose this portion of the motion and it is sustained.
4. Retaliatory Acts By ESU
At her deposition, plaintiff testified that Athletic Director Kent Weiser sent her a letter which threatened to retaliate because she decided to assert discrimination claims against ESU. ESU asks the Court to exclude such testimony at trial because (1) the pretrial order does not assert any such claim; and (2) plaintiff has not produced the letter in discovery. Plaintiff responds that (1) "the fact that ESU continues to this very day to treat plaintiff different than the male coaches is relevant evidence;" and (2) she does not intend to introduce evidence at trial that was not produced in discovery.
The Court sustains the motion to exclude documentary evidence of any written communication in which Athletic Director Weiser threatened to retaliate because of plaintiff's decision to assert discrimination claims. The Court finds, however, that testimonial reference to the alleged communication need not be precluded. Plaintiff alleges an ongoing violation and such evidence might be relevant to the credibility and perhaps bias of Athletic Director Weiser, if he should testify.
In response to ESU's document production request for a copy of the letter, plaintiff on February 16, 2004 stated that she was in the process of locating it and agreed to produce it. Under D. Kan. Rule 37.1, "[a]ny motion to compel discovery in compliance with D. Kan. Rules 7.1 and 37.2 shall be filed and served within 30 days of the default or service of the response, answer or objection which is the subject of the motion, unless the time for filing of such motion is extended for good cause shown. Otherwise the objection to the default, response, answer, or objection shall be waived." ESU does not argue that disclosure was independently required under Rule 26(a), Fed.R.Civ.P., and it never filed a motion (let alone a timely motion) to compel production under Rule 37(a)(2)(B), Fed.R.Civ.P. Sanctions under Rule 37(b)(2)(A), (B), and (C) — which ESU cites in support of its argument — are therefore unavailable.
The fact that the pretrial order does not recite this item of evidence is immaterial. Plaintiff testified about this matter in her deposition and for good and sufficient reasons, the pretrial order does not require plaintiff to identify all evidence on which she will rely. ESU's motion on this point is overruled.
5. Emotional Distress
ESU asks the Court to exclude any testimony or documentation regarding plaintiff's emotional distress because in response to a request for production of documents, she has not produced 103 pages of medical records. Plaintiff responds that she has produced a copy of the relevant medical record and that she is entitled to testify regarding the effect of inequitable treatment on her emotional well-being.
ESU served a document production request for "medical records relating to the need for Maxine Mehus' prescription of Zoloft." By response dated February 16, 2004, plaintiff's counsel agreed to produce those records. Until it filed this motion, ESU made no effort to enforce counsel's agreement to produce the records. Two days after ESU filed its motion in limine, on July 16, 2004, plaintiff provided four pages of medical records. ESU complains that plaintiff's counsel selected these records from "scores of pages of records in the possession of plaintiff's counsel since February 2004," and that plaintiff's failure to provide all 103 pages of medical records has significantly prejudiced its ability to cross examine on plaintiff's alleged emotional distress.
The Court recognizes that the attorney who conducted discovery in this case has passed the reins to new counsel, but the unavoidable fact is that ESU's position on this issue is seriously compromised by the failure of former counsel to comply with D. Kan. Rules 37.1 and 37.2 and file a motion to compel production under Rule 37, Fed.R.Civ.P. Furthermore, nothing in the present record suggests that plaintiff has not produced all "medical records relating to the need for Maxine Mehus' prescription of Zoloft." ESU persists in mis-citing Rule 37(C) for the proposition that a party who without substantial justification fails to disclose information required by "discovery" maybe sanctioned pursuant to Rules 37(b)(2)(A), (B) and (C) and 37(b)(2)(B). In fact, in relevant part, Rule 37(c) does not address "discovery" in general, but disclosures required by Rules 26(a) and 26(e)(1). ESU correctly notes that under Rule 37, if a party fails to respond to a request for production, the Court may refuse to let the disobedient party present evidence, see Okla. Federated Gold Numismatics, Inc. v. Blodgett, 24 F.3d 136, 139 (10th Cir. 1994), but sanctions under Rule 37(b) presuppose a party's failure to obey an order for discovery under Rule 37(a). ESU's motion to exclude medical records and testimony about plaintiff's emotional distress is therefore overruled.
Presumably, ESU is referring to Rule 37(c).
5 [sic]. Sexual Relationships Of ESU Employees
ESU seeks to prevent testimony regarding an incident in which a former girlfriend of Kenny Wilhite, assistant football coach, sent ESU coaches and staff members an email which included a naked picture of Coach Wilhite. ESU argues that such evidence has no possible relevance and that it should be excluded under Rule 403, Fed.R.Evid., because its probative value is substantially outweighed by the danger of unfair prejudice. Plaintiff apparently argues that her suit involves disparate treatment, that "[a] perfect example of inequitable treatment is events surrounding [the] dissemination of a naked picture of Mr. Wilhite via email," and that evidence regarding the incident is therefore admissible. Plaintiff reasons that after the email, Coach Wilhite continued his employment "without repercussions," while in other respects the athletic director subjected her to "undue scrutiny."
While plaintiff claims that "[t]he version of the story presented by defense counsel is different than the evidence plaintiff intends to present at trial," she has not shared that version with the Court. On this record, the Court cannot imagine why Coach Wilhite should have been investigated or suffered "repercussions" on account of the incident, or how evidence about the email would assist the jury in deciding whether ESU subjected plaintiff to different terms, conditions and privileges of employment than similarly situated male colleagues by (1) providing her a ten-month appointment while providing 12-month appointments to similarly situated males; (2) requiring her to teach while not requiring similarly situated males to do so; and (3) paying her less than similarly situated males for equal work which requires substantially similar skill, effort and responsibility. Furthermore, even if the athletic director lied about the email having a virus, so that recipients would hopefully not open it, plaintiff has not established that such evidence should be admitted for any legitimate purpose under Rule 404(b), Fed.R.Evid.
Evidence regarding the email is excluded. Its relevance, if any, is substantially outweighed by the danger of unfair prejudice and waste of time under Rule 403.
6. NCAA Rules Violations
ESU asks the Court to exclude reference to NCAA rule violations and alleged violations, arguing that they have no relevance to the issues in this litigation and will cause undue prejudice, jury confusion and waste of time. Plaintiff opposes this request, anticipating that ESU will present evidence that she yelled at referees in violation of NCAA rules and these violations explain why she earns less than male coaches.
Nothing in the pretrial order suggests that ESU will attempt to explain plaintiff's pay disparity by reference to NCAA rule violations. The Court therefore sustains ESU's motion on this issue.
7. Grievance Committee
ESU asks the Court to prohibit trial testimony from Janet Borst and Marion Jones, members of the internal Grievance Committee which evaluated plaintiff's sex discrimination claim, and evidence of the Grievance Committee recommendations with regard to the athletic department. ESU argues that committee members have no first-hand knowledge of the discrimination alleged in this case; that their opinions as lay witnesses are inadmissible because they did not perceive any of the events at issue in this case; and that the Grievance Committee recommendations will confuse, mislead and invade the province of the jury. Plaintiff opposes ESU's request, arguing that the recommendations are admissions by a party opponent and that if the Court excludes the findings and recommendations of the Grievance Committee, it should allow evidence that plaintiff exhausted her ESU remedies before she filed suit.
Committee members lack personal knowledge of the alleged discrimination in this case and are not competent to testify thereto. Rule 602, Fed.R.Evid. Furthermore, opinion testimony that is not based on perception is inadmissible under Rule 701, Fed.R.Evid. See Shrewsbury v. State Farm Mut. Auto. Ins. Co., No. 95-4183-RDR, 1997 WL 104113, at *3 (D. Kan. Feb. 5, 1997). Accordingly, the Court excludes the findings of the Grievance Committee and sustains ESU's motion on this point.
Plaintiff cites no legal or factual support for her theory that the Grievance Committee recommendations are "admissions" by a party opponent, and the Court finds that they should be excluded. On this record, it appears that the recommendations constitute nothing more than the lay opinion of randomly selected faculty members and other individuals. Plaintiff has not shown that the Grievance Committee had any authority to recommend general changes in the administration of the athletics department at ESU. The fact that the Grievance Committee recommended better definition of "core athletics programs," re-evaluation of coaching staff job descriptions, and new job descriptions for coaches has no apparent relevance to the issues in this case. The Grievance Committee recommendation that ESU offer 12-month contracts to all coaches who are expected to recruit during summer months has slight relevance, but it is outweighed by dangers of confusion of the issues, undue delay and waste of time under Rule 403, Fed.R.Evid. Finally, the fact that plaintiff exhausted her ESU remedies before she filed suit is immaterial to the claims at issue here. ESU's motion on this point is sustained.
8. Other Allegations Of Sexual Harassment
ESU seeks to exclude evidence that it harassed, discriminated or retaliated against employees other than plaintiff, arguing that the relevance of such evidence is substantially outweighed by the danger of unfair prejudice and confusion of the issues. Plaintiff argues that her case is about disparate treatment and that "[i]f some of the witnesses listed by plaintiff have information regarding women being paid or treated different than men by defendant ESU, then that would be relevant, too." Neither party has identified specific instances of harassment, discrimination or retaliation against employees other than plaintiff, and plaintiff has not established that such evidence should be admitted under Rule 404(b), Fed.R.Evid. ESU's motion on this point is therefore sustained.
9. Core Sports
ESU asks the Court to prohibit any reference to "core sports," as former Athletic Director William Quayle may have applied that concept to volleyball, basketball and football programs at ESU. It argues that any reference would create a significant likelihood of jury confusion and should be excluded under Rule 403, Fed.R.Evid.; that the "core sports" designation predates the applicable two-year statute of limitations in this case; and that the "core sports" concept is irrelevant because it no longer exists. Plaintiff disagrees, arguing that ESU has documents which evidence an official position that even now, some sports (including volleyball) are "core sports" which merit preferential funding. Plaintiff insists that such evidence is relevant to the issues of equal pay and disparate treatment.
All of these arguments go to the weight rather than the admissibility of the evidence. Such evidence has clear relevance to plaintiff's claim that David Moe (men's basketball coach) and Brandon Schneider (women's basketball coach) are suitable comparators with regard to salary. Such testimony will not mislead the jury or cause it to improperly apply the law, and such evidence would not allow plaintiff to recover for acts that occurred more than two years before she filed suit. The fact that the designation no longer exists goes to the weight, not the admissibility, of the evidence.
IT THEREFORE ORDERED that Emporia State University's Motion In Limine (Doc. #125) filed July 14, 2004 be SUSTAINED as to paragraphs 2, 3, 5 [sic], 6, 7 and 8 and OVERRULED as to paragraphs 5 and 9. As to paragraph 1, the motion is SUSTAINED as to general evidence relating to inequitable funding of volleyball and OVERRULED as to plaintiff's opportunity to raise revenue through ticket and program sales. As to paragraph 4, the motion is SUSTAINED as to documentary evidence of a communication from Kent Weiser and OVERRULED as to testimony concerning the alleged threat.
IT FURTHER ORDERED that the parties confer in good faith to resolve all outstanding objections to witnesses, exhibits and deposition testimony, based on the rulings contained in this order. The Court will not entertain any such objections unless and until the parties have attempted in good faith to resolve the dispute among themselves either in person or via telephone conference. If any objections remain after such conference, the objecting party shall notify the Court no later than one business day before trial.