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ORDER DENYING DEFENDANTS’

MOTIONS IN LIMINE

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

_______________________________________)

FANAYE TURNER, )

) No. C05-1575RSL

Plaintiff, ) 

v. )

) ORDER DENYING DEFENDANTS’

UNIVERSITY OF WASHINGTON and, ) MOTIONS IN LIMINE

BUDDY RATNER, )

)

Defendants. )

_______________________________________)

This matter comes before the Court on “Defendants’ Motions In Limine” (Dkt. #23). In

their motions, defendants move to exclude: (1) evidence concerning a racist comment allegedly

made by Jeri Staley-Earnst, the Administrative Director of University of Washington

Engineered Biomaterials (“UWEB”) program; and (2) evidence concerning sexual behavior and

comments allegedly made by defendant Buddy Ratner toward plaintiff. Motion at 1. 

Defendants move to exclude this material under Fed. R. Evid. 104, 402, and “[i]n order to keep

this case manageable and on target.” Reply at 6. For the reasons set forth below, the Court

denies defendants’ motions in limine.

1. Race-Based Comment

Defendants move under Fed. R. Evid. 402 and 403 to exclude a racist comment allegedly

made by Ms. Staley-Earnst to Tom Grames, who was hired as a temporary employee to fill the

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ORDER DENYING DEFENDANTS’

MOTIONS IN LIMINE -2-

position of Program Coordinator for UWEB’s Education and Outreach program, because the

comment “is not probative of racial bias on the part of any decision-maker.” Motion at 2-3; see

Dkt. #50 at 2. In opposition, plaintiff contends that this comment is relevant because it was

“made in the context of the hostile and abusive work environment Ms. Staley-Earnst was

creating, and the hyper-scrutiny she was imposing on Ms. Turner,” and because “Ms. StaleyEarnst was a decision maker in many decisions alleged by Ms. Turner as part of her hostile and

disparate treatment case.” Response at 2. “Unless evidence [is clearly admissible on all

potential grounds], evidentiary rulings should be deferred until trial so that questions of

foundation, relevancy and potential prejudice may be resolved in proper context.” Hawthorne

Partners v. AT&T Techs., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993); see also 11 Charles

Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2885 (“In

nonjury cases the district court can commit reversible error by excluding evidence but it is

almost impossible for it to do so by admitting evidence.”). 

In this case, given the fact-specific nature of the circumstances surrounding this

comment, the Court DENIES defendants’ motion in limine. The Court will consider objections

to this material at the time of trial when the comment can be presented in the appropriate

context. The Court bases its ruling on the expectation that the development of this context at

trial, however, will not involve a presentation of cumulative evidence or waste of time. See

Fed. R. Civ. P. 403. Accordingly, “the court’s ruling regarding [this] motion in limine is

‘subject to change when the case unfolds, particularly if the actual testimony differs from what

was contained in the . . . proffer.” Wechsler v. Hunt Health Sys., Ltd., 381 F. Supp. 2d 135, 140

(S.D.N.Y. 2003) (quoting Luce v. United States, 469 U.S. 38, 41 (1984) (ellipsis in original).

2. Alleged Romantic Interest

Defendants also move to exclude evidence concerning alleged romantic advances by

defendant Buddy Ratner toward plaintiff. Defendants do not point to any evidentiary rule for

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ORDER DENYING DEFENDANTS’

MOTIONS IN LIMINE -3-

exclusion of this material, but instead contend that it should be excluded because plaintiff has

not shown that the alleged sexual advances constitute a “protected activity” to support her

retaliation claim. Motion at 6. As defendants concede in their motion, however, “[t]o determine

whether these actions were protected, the court must consider the setting in which the activity

arose and balance the interest and motivations of the employer and employees.” Id. This factspecific inquiry is best addressed at trial, not on the narrow record before the Court on

defendants’ motions in limine. Accordingly, the Court DENIES defendants’ motion in limine. 

However, as with the context surrounding the race-based comment, the Court bases its ruling on

the expectation that presentation of the material concerning alleged sexual advances toward

plaintiff will not result in cumulative evidence or cause undue delay. See Fed. R. Civ. P. 403.

For all of the foregoing reasons, “Defendants’ Motions In Limine” (Dkt. #23) is

DENIED.

DATED this 10th day of October, 2007.

A

Robert S. Lasnik

United States District Judge 

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