IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SAGE REDWIND,

Plaintiff,

v.

WESTERN UNION, LLC,

Defendants.

Civ. No. 3:14-cv-01699-AC 

OPINION & ORDER

ACOSTA, Magistrate Judge:

The parties’ briefing of the issues raised in Western Union’s Motion (ECF No. 95) for

Summary Judgment contains numerous objections to the evidence each side submits to support their

respective position. In addition, Redwind raised objections through a separate Motion (ECF No.

156) to Strike Evidence. Before ruling on the merits of Western Union’s summary judgment

arguments, the court must determine the scope of the evidentiary record on summary judgment. The

court will first consider Western Union’s objections, and thereafter analyze Redwind’s objections,

thereby resolving all objections the parties have raised in connection with the summary judgment

FINDINGS & RECOMMENDATION - 1 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 1 of 52
motion and in Redwind’s separate motion to strike. The court’s summary judgment rulings will be

filed separately.

I. Western Union’s Objections.

Western Union raises objections to portions of the Redwind Declaration, as well as the

exhibits attached to the declaration. Specifically, Western Union moves to strike all or part of

twenty-eight paragraphs of the Redwind Declaration. Western Union also moves to strike all or part

of Exhibits 1, 2, 4, 5, 8-23, 25-28, 32, 33, 35-45, 48-78, 79, and 80 to the Redwind Declaration.

Rule 56 provides that, on summary judgment, a partymay object to the opponent’s evidence

based on the contention that “the material cited to support or dispute a fact cannot be presented in

a form that would be admissible in evidence.” FED. R. CIV. P. 56(c)(2). When faced with such an

objection, the court does “not focus on the admissibility of the evidence’s form.” Fraser v. Goodale,

342 F.3d 1032, 1036 (9th Cir. 2003). Instead, the court should “focus on the admissibility of its

contents.” Id. (quoting Block v. City of L.A., 253 F.3d 410, 418-19 (9th Cir. 2001)). However, the

proponent of the challenged evidence “bears the burden of proof of admissibility,” and must

adequately develop the factual record to show the challenge evidence could be presented in

admissible form at trial. Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1004 (9th Cir. 2002).

A. Grounds for Objections.

Redwind argues the court should denyWestern Union’s objections because it failed to confer

in good faith as required by Local Rules 7-1 and 56-1. Under LR 7-1, a movant must confer with

the opposing party prior to filing any motion. LR 7-1(a). Local Rule 56-1 confirms that evidentiary

objections raised in a response or replymemorandum are subject to the conferral requirement. L.R.

56-1(b). Redwind contends Western Union failed to confer before raising its evidentiary motions

FINDINGS & RECOMMENDATION - 2 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 2 of 52
in its Reply. However, Exhibit 1 to Redwind’s Declaration in Plaintiff’s Response in Opposition

to Defendant’s Evidentiary Objections (“Redwind Evidentiary Declaration”) is an email exchange

between Redwind and Western Union’s counsel conferring about Western Union’s evidentiary

objections. Therefore, Redwind’s own evidence undermines her argument. To the extent Redwind

argues the conferral evidenced in Redwind Evidentiary Declaration Exhibit 1 was not in good faith,

Redwind introduced no evidence to support her argument. Because there is no evidence Western

Union conferred in bad faith, the court will not denyWestern Union’s objections for failure to confer

pursuant to LR 7-1.

Redwind next argues that, to the extent Western Union conferred in good faith, they failed

to state their objections in sufficient detail. She argues Western Union “failed to discuss the alleged

inadequacy at all.” (Evidentiary Resp. at 1.) However, in the conferral email featured in Exhibit 1,

defense counsel sent Redwind a twelve-and-one-half page chart articulating the objectionable

material and the grounds for Western Union’s evidentiary objection. Therefore, the court will not

deny Western Union’s objections on this ground. 

The court now turns to each of Western Union’s paragraph-specific arguments in which

Western Union asserts one or more of the following grounds.

1. Relevance.

Evidence is “relevant” under the Federal Rules of Evidence (“Rules”) where it “has any

tendency to make a fact more or less probable than it would be without the evidence” and “the fact

is of consequence in determining the action.” FED. R. EVID. 401. Relevant evidence is admissible

unless another law provides otherwise, and irrelevant evidence is inadmissible.” FED.R.EVID.402. 

FINDINGS & RECOMMENDATION - 3 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 3 of 52
“Relevance is a fairly coarse filter, and when evidence is minimally relevant, it is likely to

be minimally probative as well.” U.S. v. Wiggan, 700 F.3d 1204, 1213 (9th Cir. 2012). In analyzing

the relevancy of evidence, trial courts “have a wide latitude in excluding evidence of remote

relevance. Cal-Bay Corp. v. U.S., 169 F.2d 15, 24 (9th Cir. 1948). Moreover, Rule 403 provides

that relevant evidence is inadmissible where “its probative value is substantially outweighed by a

danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time,

or needlessly presenting cumulative evidence.” FED. R. EVID. 403. 

2. Authentication and Personal Knowledge.

For evidence to be admissible in federal court, the proponent of that evidence must “lay the

foundation” for that evidence. With regard to witness testimony, the primary means of laying the

foundation is introducing evidence that the witness has “personal knowledge” of the matters to

which he or she testifies. FED. R. EVID. 602.

A witness may testify to a matter only if evidence is introduced to support a finding

that the witness has personal knowledge of the matter. Evidence to prove personal

knowledge may consist of the witness’s own testimony. This rule does not apply to

a witness’s expert testimony under Rule 703.

Id.

A proponent lays the foundation to introduce documents by “authenticating” those

documents. FED. R. EVID. 901(a). “Authentication is a ‘condition precedent to admissibility . . . .’”

Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). Evidence is authenticated where

the proponent produces “evidence sufficient to support a finding that the matter in question is what

its proponent says it is.” Id.; FED. R. EVID. 901(a). 

\ \ \ \ \

\ \ \ \ \

FINDINGS & RECOMMENDATION - 4 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 4 of 52
3. Opinion, Conclusory, Speculative, or Conjectural Testimony.

Although expert witnesses may testify in the form of opinions, lay-witnesses lacking

specialized knowledge may testify in the form of opinion under very limited circumstances. FED.

R. EVID. 701. A lay-witness may offer opinion testimony where that testimony is: “(a) rationally

based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or

determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge

within the scope of Rule 702.” Id. 

A natural extension of the rule against lay-witness opinion testimony is the rule that laywitnesses may not give testimony in the form of conclusions or that is speculative. Hund-Wesson

Foods, Inc. v. Ragu Foods, Inc., 627 F.2d 919, 928 (9th Cir. 1980), reh’g denied September 29,

1980. As a result, affidavit or declaration testimony that are “speculative, conclusory, and

unqualified opinion testimony,” or testimony which contains argumentative legal conclusions, is

inadmissible. Id. See also Melendez v. Morrow County Sch. Dist., Civ. No. 07-875-AC, 2009 WL

4015426, at *9 (D. Or. Nov. 19, 2009) (“To the extent that the evidentiary material submitted by

either party is speculative or represents a legal conclusion, the court, as a matter of course, will not

factor that material into the decision.); Burch v. Regents of the Univ. Of Cal., 433 F. Supp. 2d 1110,

1119 (E.D. Cal. 2006) (“[S]tatements in declarations based on speculation or improper legal

conclusions, or argumentative statements, are not facts and likewise will not be considered on a

motion for summary judgments.”)

Where the witness’s opinion testimony is based on specialized knowledge, the witness can

give opinion testimony only if the proponent qualifies the witness as an “expert” under Rule 702. 

FINDINGS & RECOMMENDATION - 5 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 5 of 52
Under Rule 702, opinion testimony is admissible where the witness is “qualified as an expert by

knowledge, skill, experience, training, or education” and:

(a)the expert’s scientific, technical, or other specialized knowledge will help the trier

of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

FED. R. EVID. 702.

4. Best Evidence Rule.

Where a proponent intends to prove the contents of a document, the document itself is the

best evidence of that content. FED.R. EVID. 1002. Typically, courts apply the best evidence rule to

require a proponent to produce the original document. U.S. v. Bennett, 363 F.3d 647, 953 (9th Cir.

2004). However, courts also apply the rule to bar a witness from testifying to the contents of the

document, and instead require the proponent to actually produce the document. Id. Therefore, the

court should exclude all testimony by a declarant who seeks to prove the contents of a document. 

Id. 

5. “Sham” Testimony.

The general rule in the Ninth Circuit is that a party cannot manufacture a genuine issue of

fact, and thereby avoid summary judgment, bysubmitting an affidavit which contradicts prior sworn

testimony. Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). “[I]f a party who has

been examined at length on deposition could raise an issue of fact simply by submitting an affidavit

contradicting his own prior testimony, this would greatly diminish the utility of summary judgment

FINDINGS & RECOMMENDATION - 6 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 6 of 52
as a procedure for screening out sham issues of fact.” Id. Because of the jury’s role in resolving

questions of credibility, courts have urged caution when applying the sham affidavit rule. Id., citing

Kennet Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir. 1980). To this end, the Ninth Circuit

requires the district court to make certain factual findings before striking a declaration as a sham. 

Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009). First, the court must find that

the affidavit is sham, or created specifically to avoid summary judgment; and second, that the

inconsistency between the prior sworn testimony and the declaration is “clear and unambiguous.” 

Id. 

6. Hearsay.

The Federal Rules of Evidence define “hearsay” as an out of court statement introduced to

“prove the truth of the matter asserted in the statement.” FED. R. EVID. 801(c). Unless a statute,

federal rule of evidence, or other rule “prescribed bythe Supreme Court” provides otherwise, hearsay

is not admissible in federal court. FED.R.EVID. 802. Several hearsay exclusions and exceptions are

relevant to the court’s analysis on the parties evidentiary motions.

a. Statements by the Party-Opponent.

Rule 801 articulates that, among the types of statements that “are not hearsay” are statements

made by the opposing party or the opposing party’s agent within the scope of their agency. FED. R.

EVID. 801(d)(2). Under that rule, a statement offered against an opposing party is admissible if it:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the

subject;

FINDINGS & RECOMMENDATION - 7 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 7 of 52
(D) was made by the party’s agent or employee on a matter within the scope of that

relationship and while it existed; or

(E) was made by the party’s coconspirator during and in furtherance of the

conspiracy.

FED. R. EVID. 801(d)(2). A hearsay statement, without more, does not “establish the declarant’s

authority under (C); the existence or scope of the relationship under (D); or the existence of the

conspiracy or participation in it under (E).” Id. When invoking subsection (D), the burden lies with

the proponent to prove that the statement was: (1) made by an agent or representative; (2) during

the employment or existence of the agency; (3) concerning a matter within the scope of the

relationship. Id.

Here, the record contains significant evidence of an agency relationship between Western

Union, as the employer, and Randall Acocelli, CraigPinnegar, Carla Anthony, Marcus McCarty, and

Luis Felipe Rodriguez Vega, as its employees, and Western Union does not contend those

individuals acted outside the scope of their employment at any time relevant to this case. Therefore,

all evidence of those individuals’ out-of-court statements is not hearsay under Rule 801(d)(2)

because it constitutes a statement by a party opponent. Moreover, on summary judgment, the court

is concerned with content and not form. To the extent the record contains out-of-court statements

by other alleged Western Union employees, Redwind may qualify those statements for admission

at trial by soliciting testimony from those individuals regarding their employment relationship with

Western Union and the scope of that relationship. Finally, Western Union does not dispute that the

logo featured throughout the record, and containing the words “Western Union” is in fact the

Defendant’s logo and trademark. The appearance of that logo on documents in the record is

evidence that the document was issued or authorized by the Defendant. Therefore, any document

FINDINGS & RECOMMENDATION - 8 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 8 of 52
featuring the Western Union logo constitutes a statement byWestern Union and is admissible under

Rule 801(d)(2). To the extent Redwind raises other hearsay exceptions, the court will specifically

address them below. 

B. Objections to Declaration Testimony.

Western Union moves to strike all or part of forty-four paragraphs from Redwind’s

Declaration in support of Plaintiff’s Response in Opposition to Defendant’s Motion for Summary

Judgment. The court will address each in turn.

1. Western Union moves to strike ¶ 3in its entirety for lack of foundation, lack of personal

knowledge, and hearsay. However, ¶ 3 merely states that the exhibits attached to Redwind’s

declaration are true and correct copies. Beyond stating the grounds of its objection in conclusory

fashion, Western Union does not explain why ¶ 3 is inadmissible based on those objections. Unless

a defendant’s objection clearly applies upon first inspection, the court will not parse the minutia of

Western Union’s non-specific argument. Because it failed to carry its burden on this objection, the

court overrules Western Union’s objection to ¶ 3.

2. Western Union moves to strike the following excerpt from ¶ 5: “When the defendant

chose to hire me, they clearly agreed that I was qualified for the position and thus, cannot have a

defense which questions whether or not I was qualified and further, it would be after-acquired.” The

court sustains Western Union’s objection. First, Redwind does not have personal knowledge of the

thought processes of those who hired her. Second, Redwind’s statement is conclusory, speculative,

and conjectural. Third, even if the Redwind’s proposed inference is reasonable, Redwind’s

statement is not a verifiable fact, but an inferential argument not suitable for inclusion in a

declaration. Therefore, this portion of ¶ 5 is stricken.

FINDINGS & RECOMMENDATION - 9 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 9 of 52
3. Western Union moves to exclude the following portion of ¶ 8: “The defendant did not

produce Plaintiff’sjob description document during discovery.” Western Union argues the statement

is misleading and unsupported by testimony or other evidence. The court will strike this section for

three reasons. First, it is irrelevant, as Western Union’s conduct during discovery is not probative

of the parties’ claims or defenses in this case. Moreover, to the extent this excerpt is probative, its

probative value is significantly outweighed by its likely prejudicial effect. Finally, Redwind does

not sufficiently lay an evidentiary foundation for her assertion. Therefore, the first sentence of ¶ 8

is stricken.

4. Western Union moves to exclude the portion of ¶ 9 beginning with “[a]ccording to

dictionary.com . . . ” and ending with “living in the Caucus region to date.” The court sustains

Western Union’s motion, as this portion of Redwind’s declaration lacks evidentiary foundation. Not

included in the record is evidence or testimony to support Redwind’s assertions. Moreover, the first

portion of this excerpt is hearsay introduced to show the definition of the word “Caucasian.”

Redwind does not justify introducing this hearsay with an alternative purpose or an exception to the

hearsay rule. Therefore, this objection is sustained.

5. Western Union objects to the following portion of ¶ 9 as non-expert opinion testimony

and because it is argumentative: “Which are they claiming Mr. Eldridge belongs to? The defendant

is relying upon hearsay and not facts as Mr. Eldridge is not a witness nor has he made a declaration

on behalf of the defendant that would specify his national origin, race or any elucidation upon his

personal characteristics?” The court agrees with Western Union. This portion of ¶ 9 is

argumentative and is more suitable for inclusion in a motion or memorandum in support. Therefore,

it is stricken from Redwind’s declaration and the court will not consider it.

FINDINGS & RECOMMENDATION - 10 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 10 of 52
6. Western union moves to exclude the following portions of ¶ 10: From “I have never

received the ‘highest rating’ . . . ” to “ . . . but only ‘Exceeds’ (not the highest rating[)];” and “I am

the highest performer according to raw data.” Western Union contends these statements are hearsay

and violate the best evidence rule. The court disagrees that these statements are inadmissible under

the best evidence rule, as Redwind is not directly describing the contents of a document. Instead,

she is describing the results of her evaluation which was later memorialized in a document. Western

Union also does not carry its burden of demonstrating that these statements are hearsay. To the

extent Redwind is referring to out-of-court statements, those statements were made by Western

Union and constitute admissions of a party opponent. Thus, Western Union’s sixth objection is

overruled.

7. Western Union moves to exclude the portion of ¶ 10 beginning with “[t]he nature of the

dispute . . . “ and ending with “ . . . based on the facts in evidence.” Western Union argues this

portion of the declaration is inadmissible non-expert opinion and is argumentative. The court agrees. 

The statement is best described as an attempt by Redwind to frame the issues relevant to the motion

for summary judgment. However, this attempt is not a verifiable fact, and is not appropriate for

inclusion in a declaration. Instead, it is argument Redwind should have included in her brief.

Therefore, this is argumentative, and will be excluded. To the extent this is not argument, the court

agrees with Western Union that this statement constitutes non-expert opinion and should be

excluded.

8 & 9. Western Union moves to exclude ¶ 11 in its entirety as hearsay and for violation of

the Best Evidence Rule. The court agrees in part. Paragraph 11 attests that Exhibit 4 is a true and

accurate copy of the Western Union Code of Conduct. Paragraph 11 also contains a quote from that

FINDINGS & RECOMMENDATION - 11 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 11 of 52
code of conduct and Redwind’s observation that the code of conduct does not permit managers to

use their discretion in rewarding employees for their performance. Because the first portion of ¶ 11

quotes the code of conduct, it violates the best evidence rule. Further, the bracketed portion of ¶ 11

constitutes an inference Redwind draws from the language of the Code of Conduct. This statement

is argumentative. Therefore, the first sentence of ¶ 11 is stricken.

However, the court will not exclude the second clause of ¶ 11 which states: “Exhibit 4 is a

true and correct copy of the Code of Conduct copy I have in my possession from Western Union’s

internal website, the Wire.” (Ex. 4, p. 18.) This is not hearsay, and does not violate the Best

Evidence Rule. Therefore, the court will grant in part this evidentiary objection and strike from ¶

11 the following: “Western Union’s Code of Conduct states that employees are ‘recognized and

competitively rewarded for their performance based on merit’, [meaning, not discretion] . . . .”

10-12. Western Union moves to strike portions of ¶ 12. First, it argues the word “withheld”

should be stricken from the following: “the defendant has withheld merit increase range guidelines

that applied to year-end review of year 2012 through 2015 periods.” Western Union argues Redwind

lacks personal knowledge, and that it is conclusory, conjectural, or speculative. The court agrees. 

By using the word “withheld,” Redwind is asserting that such a document exists, but that Western

Union is not producing it. This is conclusory, conjectural, and speculative. Moreover, this statement

is not probative of Redwind’s claims or Western Union’s defenses. Redwind is attempting to revive

a discovery dispute which would be best addressed on a motion to compel. Finally, to the extent it

is probative, its probative value is outweighed by the prejudicial effect it would have on Western

Union.

\ \ \ \ \

FINDINGS & RECOMMENDATION - 12 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 12 of 52
Second, Western Union moves to exclude the following: “Mr. Pinnegar was not the decider

of my merit increase, Randall Acocelli was.” Western Union argues Redwind lacks personal

knowledge as to this fact, and has not laid the foundation to make such an assertion. The court

agrees. Redwind does not support her conclusion with deposition testimony by either Acocelli or

Pinnegar explaining the organizational decision-making structure as it related to merit-increase

decisions. Nor has Redwind introduced admissible exhibits which would do the same. Because

Redwind failed to adequately lay the evidentiary foundation for her assertion, the court sustains

Western Union’s objection and strike this portion of ¶ 12.

Third, Western Union moves to strike the final two sentences of ¶ 12 which read: “The

defendant claims they haven not discriminated in my merit pay increase but offered no evidence

supporting that they paid me within the range or the guidelines that applied to the year in question. 

The defendant cannot use arguments about merit increase while also withholding evidence.” 

Western Union argues this should be stricken as non-expert opinion testimony and argumentative. 

The court agrees. These two sentences do not contain verifiable facts, but are a continuation of

Redwind’s arguments in her Response. As such, they are not appropriate for inclusion in an

evidentiary declaration. Thus, Western Union’s objection is sustained.

13. Western Union moves to strike ¶ 13 in its entirety for lack of personal knowledge,

because it is argumentative opinion, conclusory, and unsupported by testimony or other evidence. 

The court agrees in part. ¶ 13 reads in its entirety: “I was awarded the Outstanding Achievement

Award in 2012 because of my merit from the year 2011 and not because of Mr. Pinnegar’s

discretion.” The court will sustain in part this objection. Redwind has not laid the foundation, and

lacks personal knowledge, regarding the following part of that paragraph: “because of mymerit from

FINDINGS & RECOMMENDATION - 13 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 13 of 52
the year 2011 and not because of Mr. Pinnegar’s discretion.” However, the fact Redwind received

the 2012 Outstanding Achievement Award is one of which Redwind has personal knowledge. 

Therefore, the court overrules Western Union’s objection with respect to “I was awarded the

Outstanding Achievement Award in 2012.” However, the court sustains this objection in part and

strikes the language “because of my merit from the year 2011 and not because of Mr. Pinnegar’s

discretion.”

14. Western Union’s fourteenth objection moves to strike two portions from ¶ 14. First, it

moves to exclude: “According to the Tuition Reimbursement policy, I was an eligible candidate.” 

Second, it moves to exclude: “Per the Tuition Reimbursement Policy, it is Mr. Pinnegar’s obligation

as an employee of Western Union to approve the tuition for a qualified individual.” Western Union

argues these statements violate the Best Evidence Rule and are inadmissible hearsay. The court

agrees. 

With these statements, Redwind is attempting to prove the contents of the Tuition

Reimbursement Policy. To prove the contents of that document by any means other than the policy

document itself is contrary to the Best Evidence Rule. Therefore, these portions of ¶ 14 should be

excluded, and Western Union’s fourteenth objection is sustained.

15. Western Union objects to the following portion of ¶ 15 for lack of personal knowledge,

lack of foundation, and because it constitutes hearsay: “To my knowledge, Mr. Acocelli did not

personally write this recommendation letter; his secretary, Lilian Marin did . . . .” However, the

basis of Western union’s objections is not immediately apparent on the face of this excerpt, and

Western Union does not articulate how its objections apply to demonstrate this excerpt’s

inadmissibility. Therefore, this objection is overruled.

FINDINGS & RECOMMENDATION - 14 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 14 of 52
16. Western Union objects to the following portion of ¶ 15 for lack of personal knowledge,

and because it is argumentative, conclusory, speculative, and conjectural: “The recommendation

letter Mr. Acocelli is referring to in his declaration Exhibit 1 is made to Portland State University

(not to Marylhurst University) and was written BEFORE his retaliation and discrimination and

BEFORE I reported him.” Western Union does not meet its burden of explaining how their

objections apply to the objected-to material. Accordingly, the court overrules this objection.

17. Western Union objects to following portion of ¶ 15 because it contends the material

contained therein is irrelevant, conclusory, speculative, conjectural, and inadmissible lay-witness

opinion testimony: “I did not use Mr. Acocelli’s recommendation later due to fear of further

retaliation and fear of him slandering me and jeopardizing my ability to get into an MBA program.”

The court overrules this objection. In this excerpt, Redwind is explaining her own motivations and

mental impressions. Therefore, it is not argumentative, conclusory, conjectural, or speculative. 

Moreover, Western Union does not elaborate on how this evidence is irrelevant. Therefore, the court

will overrule this objection and admit this excerpt of 15.

18. Western Union moves to exclude three portions of ¶ 16 for lack of personal knowledge

and because they are conclusory, speculative, or conjectural. The court agrees. The first portion,

from “Ms. Chen was at a higher position . . . ” to “ . . . since she lived in the San Francisco Area at

the time” is excluded for lack of personal knowledge and lack of foundation. Redwind does not cite

to testimony by Ms. Chen or to documents which support Redwind’s factual assertion. 

Second, Western Union moves to exclude the following: “She was referring to the shape of

my nose.” The court will exclude this portion of ¶ 16, as it is conclusory, speculative, and

FINDINGS & RECOMMENDATION - 15 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 15 of 52
conjectural. Redwind does not have personal knowledge of Ms. Chen’s mental state, and has not

introduced testimony by Ms. Chen to support this statement. 

Third, Western Union moves to exclude the sentence beginning with: “Ms. Chen recognized

2 out of 3 . . .” and ending with “. . . everyone could see this marginalization.” Again, Redwind

lacks personal knowledge of Ms. Chen’s motivation for recognizing only two of the three workers

on the team. Moreover, to state that the statement was intended to marginalize her and that

“everyone” understood that to be the purpose, is conclusory, speculative, and conjectural. As such,

it should be excluded. Therefore, the court sustains Western Union’s eighteenth objection to the

Redwind Declaration.

19. Western Union further moves to exclude six additional portions of ¶ 16 as non-expert

opinion evidence, argumentative, and because they are conclusory speculative, or conjectural. First,

Western Union moves to exclude “By ‘not acting Indian’ . . .” through “. . . I did not ‘act’ like her

created stereotype.” Like the previous objection, Redwind attempts to speculate about the

motivation behind Ms. Chen’s alleged comments and behavior. Redwind lacks personal knowledge

to opine about the mind set of Ms. Chen, so this portion of her declaration is conclusory, speculative,

and conjectural. An identical analysis applies to Redwind’s assertion that “She continued with her

racially motivated harassment.” Therefore, those portions of ¶ 16 are excluded.

Western Union also moves to exclude the following portions of ¶ 16 as argument: (1) “[M]y

nose . . . is a racially protected feature of my people;” (2) “Ms. Chen marginalized my participation

and socially excluded me from the team I was part of;” (3) from “When she failed to prove . . .” to

“. . . through the appropriate channels to me;” and (4) “My reporting and opposing of Ms. Chen was

a protected activity.” The court will sustain each of these objections with one exception. Each

FINDINGS & RECOMMENDATION - 16 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 16 of 52
excerpt demonstrates conclusory and argumentative statements. As such, they are largely

inadmissible. The one exception is Redwind’s declaration that “I opposed her . . . practices on

salesforce and through the appropriate channels available to me.” Although the court will exclude

the phrase “discriminatory” before the term “ work practices,” the remainder of this sentence is

admissible. Therefore, Western Union’s nineteenth objection is sustained in part.

20. Western Union moves to exclude two sentences from ¶ 17 for violation of the Best

Evidence Rule and the Hearsay Rule. The first excerpt at issue reads as follows: “The code of

conduct states that my immediate supervisor is an expected resource to turn to when events like what

took place between Ms. Chen and I occur.” The court sustains Western Union’s objection with

respect to this sentence, as it attempts to prove the contents of a document in violation of the Best

Evidence Rule.

The second objected-to portion of ¶ 17 reads as follows: “Mr. Pinnegar didn’t create a safe

environment for me to report such serious issues as discrimination, like the code of conduct

promised he would.” The court sustains in part and overrules in part Western Union’s objection to

this sentence. The second clause, “like the code of conduct promised he would,” violates the best

evidence rule, as it is attempting to prove the contents of the Code of Conduct. However, the first

portion of that sentence “Mr. Pinnegar didn’t create a safe environment for me to report such serious

issues as discrimination,” is not hearsay and does not violate the Best Evidence Rule. As such, the

court overrules in part Western Union’s objection.

21. Western Union moves to exclude the portion of ¶ 17 beginning with “[Pinnegar] labeled

my attempt to report Ms. Chen’s discrimination . . .” and ending, “. . . in regard to his segregating

me from the team.” The court sustains in part and overrules in part this objection. The first part of

FINDINGS & RECOMMENDATION - 17 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 17 of 52
this excerpt, “[Pinnegar] labeled my attempt to report Ms. Chen’s discrimination as an ‘interaction

issue,’” is admissible as a statement of the party-opponent. However, other portions of this

paragraph are inadmissible. The phrase “like the code of conduct promised he would” violates the

Best Evidence Rule. The remaining portion of this excerpt is argumentative, conclusory,

speculative, and conjectural. Accordingly, this objection is sustained in part and overruled in part.

22. In its twenty-second objection, Western Union moves to strike eleven paragraphs from

the Redwind declaration as hearsay. Some of these objections are addressed in other portions of

Western Union’s reply. Western Union does not explain why the objected-to material constitutes

hearsay. To the extent identical hearsay objections are addressed in other portions of this opinion,

those prior rulings control. However, the court overrules Western Union’s twenty-second objection

for lack of specificity.

23. Western Union moves to exclude the following portion from ¶ 18: “[Pinnegar] pointed

to my engagement in protected activity as an example. He used my reporting and opposing of Judy

Chen as his reference.” The court overrules this objection, as Pinnegar’s statement is a statement

of a party opponent. 

24. Western Union moves to exclude the portions of ¶ 19 which attempt to explain the

contents of the Code of Conduct. Like Redwind’s other attempts to explain the contents of the code

of conduct, this violates the Best Evidence Rule. This objection is sustained.

25. Western Union moves to exclude ¶ 20 in its entirety under the Best Evidence Rule and

the Hearsay Rule. This objection is sustained. In ¶ 20, Redwind describes the contents of her 2012

year-end review. The court has already ruled that Redwind may discuss her year-end reviews, but

cannot describe the contents of the year-end reviews in their written form. Redwind does just that

FINDINGS & RECOMMENDATION - 18 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 18 of 52
in ¶ 20. She specifically testifies that the review “does not mention anything in writing about Mr.

Vizcaino or ‘interaction issues’ . . . .” She also describe the contents of the written 2012 year-end

review. This violates the Best Evidence Rule. Thus, ¶ 20 is excluded.

26. Western Union next moves to exclude all of ¶ 21. Paragraph 21, like several other

portions of the Redwind Declaration, contains quotes from the Code of Conduct Policy. Similar to

the other sections discussed above, ¶ 21 violates the Best Evidence Rule and will be excluded.

27. Western Union moves to exclude the following phrases from ¶ 22: “and his

discrimination/marginalization,” “blaming me for being discriminated against,” “the discriminator,

about why he is discriminating,” and “as if Ishould submit to a male figure and be subservient to his

demands allowing him to ‘change my mind.’” The court sustains this objection. These statements,

taken alone or as a group, are argumentative, conclusory, and speculative, and constitute non-expert

opinion testimony. Therefore, the court sustains this objection and will strike these phrases from ¶

22.

28. Western Union objects to the following portion of ¶ 23: “I reported issues [sic] in ¶16-

22 to the investigator and also in the online complaint in Exhibit 8.” The court has reviewed Exhibit

8, which appears to be an ethics complaint Redwind filed with Western Union. The complaint is

lodged against Pinnegar and Acocelli, but not Chen. Moreover, Redwind’s complaints against Chen

do not appear in the complaint. However, Western Union does not explain why this inconsistency

is grounds for striking the entire sentence, and the court will not strike this excerpt in its entirety. 

Instead, the court will strike only the portion regarding Exhibit 8. Therefore, the court strikes “and

also the online complaint in Exhibit 8.” The remainder of ¶ 23 is admissible.

FINDINGS & RECOMMENDATION - 19 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 19 of 52
29. Western Union moves to exclude ¶¶ 23(c) and 23(d) for violating the Best Evidence

Rule, for violating the rule against hearsay, because it constitutes opinion testimony, and because

it is argumentative. The court sustains in part and overrules in part this objection. Paragraph 23(c)

states that “Exhibit 10 is a true and correct copy of my notes from Ms. Eagle’s calls with me.” This

statement does not violate any of the rules of evidence. Moreover, because Redwind created this

document, she has personal knowledge of its original form and may attest to its accuracy. The rest

of ¶ 23(c), in which Redwind describes the contents of that document, violates the Best Evidence

Rule and is excluded.

Similarly, ¶ 23(d) is stricken in part. The court overrules Western Union’s hearsayobjection. 

Western Union does not contend King is not a Western Union employee, or that she was acting

outside the scope of her employment. Redwind may qualify Eagle’s statements and King’s

statements as statements of a party opponent under Rule 802(d)(2) by soliciting testimony at trial

regarding their employment with Western Union and the scope of that employment. However,

certain portions of this paragraph are inadmissible argument. The court strikes “Evidence produced

by the defendant” through the end of the paragraph, because they are not factual statements but

argument unsuitable for inclusion in a declaration.

30. Western Union moves to exclude all of ¶ 23(e). The court will sustain this objection in

part. In the first sentence, Redwind attests that Exhibit 12 to her declaration is an accurate copy of

a document she received during discovery, specifically, the “investigation conclusion of [Redwind’s]

grievance Ms. Eagle investigated from March 9 - March 25, 2013.” This is admissible. However,

the remainder of the paragraph is argumentative, conclusory, and speculative, and is not suitable for

inclusion in a declaration. Therefore, all of ¶ 23(e) is stricken except the first sentence.

FINDINGS & RECOMMENDATION - 20 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 20 of 52
31. Western Union moves to exclude all of ¶¶ 25 and 25(a). The court sustains in part the

Defendant’s motion. Paragraph 25 is admissible, as it does not violate the rules of evidence. 

Paragraph 25(a) is also admissible. Redwind is competent to testify about her actions relating to the

June 26, 2013 “participatory training” based on her personal knowledge. Moreover, Acocelli’s and

Pinnegar’s statements are statements of a party-opponent admissible under Rule 801(d)(2). 

Therefore, this objection is overruled.

32. Western Union moves to exclude ¶ 25(b) in its entirety for lack of personal knowledge,

because it is unsupported by testimony or other evidence, and because it is argumentative. The court

grants Western Union’s motion in part and denies it in part. Western Union is correct that the phrase

“Ms.Chen’smarginalization/discrimination/retaliation” is argumentative. However,WesternUnion

does not explain how the remainder of ¶ 25(b) is inadmissible. Therefore, the court strikes the

phrase “of my opposing Ms. Chen’s marginalization/discrimination/retaliation.” The remainder of

¶ 25(b) is admissible.

33. Western Union moves to exclude ¶ 26(a). Paragraph 26(a) discusses Western Union

employees who have won merit awards in consecutive years. Defendant contends it should be

stricken in its entirety under the Best Evidence Rule and because it is unsupported by testimony or

other evidence, constitutes opinion, and is argumentative. The court agrees in part. The court strikes

“since the awards are not discretionary, merit based” from the first sentence. The following sentence

is admissible. However, from, “Exhibit 15 shows . . .” through the end of ¶ 26(a) is stricken, as it

violates the Best Evidence Rule. To the extent there are portions that do not violate the Best

Evidence Rule, they are conclusory speculative, and argumentative. Therefore, this objection is

sustained in part.

FINDINGS & RECOMMENDATION - 21 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 21 of 52
34. Western Union moves to exclude ¶¶ 27 and 28 in their entirety. The court sustains in

part Western Union’s objection as to ¶ 27 and sustains in full its objection against ¶ 28. With respect

to ¶ 27, the objection is sustained as to the entire paragraph except for portions of the first sentence. 

The court will strike the word “discriminatory” from the first sentence as conclusory and

argumentative. However, the remainder of that sentence, which reads, “On August 9, 2013, I

opposed Western Union’s practices of giving an award based on an unfair advantage first, to Mr.

Pinnegar and then, to Mr. Hunt,” is admissible. This portion of ¶ 27 expresses Redwind’s

motivation for “opposing” Western Union’s practices and the fact of Redwind’s opposition. The

remainder of ¶ 27 and all of ¶ 28 are excluded, as those paragraphs violate the Best Evidence Rule,

and are conclusory and argumentative, and the Defendant’s objection is sustained to that extent.

35. Western Union moves to exclude ¶¶ 29(b) and (c) on the basis of hearsay. This objection

is overruled. Acocelli’s out-of-court statements are statements of a party-opponent, and admissible

under Rule 801(d)(2).

36. Western Union moves to exclude ¶ 30 in its entirety. The court overrules this objection,

as Eagle is an employee of Western Union, and her statements constitute statements of a partyopponent.

37. Western Union moves to exclude ¶ 31 in its entirety. The court sustains this objection,

and strikes ¶ 31 as argumentative and conclusory, and for violation of the Best Evidence Rule.

38. Western Union moves to exclude ¶ 32(a) in its entirety. The court sustains this

objection, as ¶ 32(a) is conclusory and argumentative, and for violation of the Best Evidence Rule. 

\ \ \ \ \

\ \ \ \ \

FINDINGS & RECOMMENDATION - 22 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 22 of 52
39. Western Union moves to exclude ¶¶ 32(b) and (c). The court sustains this objection with

respect to ¶ 32(b) and sustains in part and overrules in part the objection to ¶ 32(c). Paragraph 32(b)

reads as follows: “DISCOVERY: the defendant produced no document showing Mr. McCarty

investigated Ms. King.” This paragraph, which is primarilya comment on Western Union’s conduct

during discovery, is not probative of Redwind’s claims. To the extent it is probative of her claims,

the probative value is outweighed by the prejudicial nature of the claim. Therefore, ¶ 32(b) is

stricken.

However, not all of ¶ 32(c) is inadmissible. The court strikes all of ¶ 32 (c) except for the

following: (1) “My email signatures usually include motivational quotes from the books I read, the

quote Mr. McCarty refers to in his Declaration ¶ 10 was not made to him specifically, and the quote

was a default quote for all sent emails at the time.” (2) “The quote was not written by me but rather,

by a Native American writer and is from a story book.”; and (3) “As it can be seen, Exhibit 23 shows

this same quote appearing in other emails that are not made to Mr. McCarty.” The remainder of ¶

32(c) consists of hearsay, conclusory statements, and argument. Therefore, all of ¶ 32(c) is stricken

with the exception of the three sentences discussed above.

40. Western Union moves to exclude ¶ 33 in its entirety. The first two sentences of ¶ 33 are

admissible. However, the court will exclude from “The warning was regarding . . .” through “I was

able to use as evidence today.” Therefore, this objection is sustained in part.

41. Western Union moves to exclude ¶¶ 33(e) and (f). The court will sustain this objection. 

Paragraph 33(e), in which Redwind discusses the “likes” she received on the Salesforce post which

ultimately led to her written warning, is irrelevant to the issues in this case. Whether Redwind’s

colleagues actually liked or “electronically liked,” her web postings are not relevant to whether that

FINDINGS & RECOMMENDATION - 23 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 23 of 52
posting was protected activity, whether it violated Western Union’s policies, and whether Western

Union’s warning for the post was pretext for discrimination. Therefore, this objection is sustained

and ¶ 33(e) is stricken.

Paragraph 33(f) is relevant to the question of pretext. However, the last sentence of ¶ 33(f)

is stricken because Redwind lacks personal knowledge about the facts she asserts, and has failed to

lay the foundation for her assertions. Therefore, ¶ 33(e) and the last sentence of ¶ 33(f) are stricken

from the Redwind Declaration.

42. Western Union moves to exclude ¶ 33(h) in its entirety. The court overrules this

objection because the subject matter of this paragraph would e admissible at trial through Redwind’s

testimony.. To the extent McCarty’s testimony is hearsay, it is attributable to Western Union and

admissible under Rule 801(d)(2)

43. Western Union moves to exclude ¶¶ 33(I) and 34. The court overrules this objection in

part. Paragraph 33(I) primarily concerns Western Union’s policies, or lack thereof, regarding firsttime violations of other Western Union policies. In it, Redwind states that “The defendant does not

have any policy for the first time alleged violation . . . .” The content of this evidence would be

admissible at trial, given the proper foundation, under the hearsay exception for the absence of a

record of a regularly-conducted activity. FED. R. EVID. 803(7).

Paragraph 34, however, is largely admissible. In ¶ 34, Redwind opines on her job duties and

the circumstances under which she came up with business ideas she eventually posted to Salesforce. 

Redwind has personal knowledge of her job duties and may testify about them. However, there are

portions of ¶ 34 which are conclusory, argumentative, and without evidentiary foundation. First, the

court strikes the third sentence and part of the fourth sentence, from “The Defendant has a marketing

FINDINGS & RECOMMENDATION - 24 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 24 of 52
. . .” to “products and implements them[.]” Second, the court strikes the last sentence of ¶ 34

because it is a non-expert conclusion without foundation. However, the first sentence is admissible. 

So is the excerpt from “I do not work in the product department. . . .” to “. . . copyright to my

employer.”

44. Western Union objects to all of ¶ 35(a). The court sustains this objection in part. 

Redwind is competent to testify as to most of ¶ 35(a) based on personal knowledge, and any hearsay

may be attributed to Western Union and admissible under Rule 801(d)(2). However, the last

sentence, which reads, “Temporal proximity coupled with the . . . and the retaliatory warning of

October 1st,” is argumentative and is stricken.

45. Western Union moves to exclude ¶ 36 in its entirety. The court sustains the objection

in part. The first sentence is admissible. However, the remainder of ¶ 36 is conclusory and

argumentative, and lacks foundation. Therefore, all but the first sentence of ¶ 36 is stricken.

46. Western Union moves to exclude ¶ 37(d) in its entirety on the basis of hearsay. The

court overrules this objection. To the extent this paragraph contains hearsay, the hearsay statements

are admissible as statements of a party opponent under Rule 801(d)(2).

47. Western Union moves to exclude ¶ 37(e)in its entirety. The court sustains this objection

in part. The only inadmissible material in this paragraph is the last sentence, which is conclusory,

argumentative, and contains non-expert opinion testimony. Therefore, the last sentence of ¶ 37(e)

is stricken.

48. Western Union moves to exclude all of ¶ 37(I). The court will sustain this objection in

part. Paragraph 37(I) contains statements attributable to Western Union. However, beginning with

FINDINGS & RECOMMENDATION - 25 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 25 of 52
“The facts and Ms. Reynold’s own testimony prove . . .” through the end of ¶ 37(I) are stricken as

conclusory, argumentative, and non-expert opinion.

49. Western union moves to exclude ¶ 37(j). The court overrules this objection. To the

extent this paragraph contains out-of-court statements, those statements are attributable to Western

Union and admissible under Rule 801(d)(2).

50. Western union moves to exclude ¶ 37(k). The court sustains this objection in part. The

first part of ¶ 37(k) is argumentative and conclusory, and is stricken. However, the final clause of

the paragraph, which reads “Ifiled a grievance with BOLIin February 2014” is admissible. Western

Union challenges the truth of this statement, as they contend the BOLI complaint was filed on March

5, 2014. However, the court will not strike a portion of Redwind’s declaration due to a factual

dispute. Redwind’s BOLI charge appears in the evidentiary record, and the court will determine at

a later time whether Redwind’s testimony creates a genuine issue of fact given the timing and

contents of the original BOLI charge. Therefore, this objection is sustained in part.

51. Western Union objects to ¶ 38 for lack of personal knowledge, hearsay, among other

objections. The court overrules this objection, as Western Union fails to meet its burden of

explaining how its objections apply to ¶ 38. Therefore, ¶ 38 is admissible.

52. Western Union objects to ¶ 39 for lack of personal knowledge, and because it is hearsay,

opinion testimony, conclusory, speculative or conjectural, and unsupported by testimony or other

evidence. Again, Western Union does not attempt to explain, except in conclusory fashion, how ¶

39 violates the rules of evidence. As a result, they do not carry their burden on the objection. 

Accordingly, the court overrules this objection and admits ¶ 39.

FINDINGS & RECOMMENDATION - 26 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 26 of 52
53. Western Union moves to exclude ¶ 40 in its entirety. The court sustains this objection

and strikes ¶ 40 as hearsay and as a violation of the best evidence rule.

54. Western Union objects to ¶ 41 and moves to strike it in its entirety for lack of personal

knowledge, and because it is conclusory, speculative, conjectural, and unsupported by testimony or

other evidence. The court disagrees. Redwind has personal knowledge of the individuals assigned

to her grievances. Therefore, this objection is overruled.

55. Western Union moves to exclude ¶ 42(a) for lack of personal knowledge and violation

of the rule against hearsay. The court overrules this objection. “Mr. Vizcaino” is a Western Union

employee, and his statements appear to involve matters within the scope of his employment, so they

constitute statements of a party-opponent under Rule 802(d)(2).

56. Western Union moves to exclude all of ¶ 42(b). The court disagrees. Western Union

couches its objection under the guise of “lack of personal knowledge, opinion, conclusory,

speculative, or conjectural, unsupported by testimony or other evidence.” However, in essence, the

defendant merelyobjects to the truth of Redwind’s statement. Therefore, this objection is overruled.

57. Western Union objects to ¶ 42(d) and argues it is non-expert opinion, conclusory,

speculative, or conjectural, and unsupported by testimony or other evidence. The court sustains

Western Union’s objection in part. The first three sentences of ¶ 42(d) are admissible evidence

because theyare admissions byWesternUnion. However, the final two sentences are argumentative. 

Therefore, the court strikes the following from that paragraph: “If no Portland employee was present

the defendant would have no need to also reference document WU697, but they did, which means

it’s also part of the answer according to law.” (Emphasis original).

\ \ \ \ \

FINDINGS & RECOMMENDATION - 27 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 27 of 52
58. Western Union moves to exclude ¶¶ 43-46. The court will overrule this objection. Each

of these paragraphs contains information about the organization of Redwind’s work group. Western

Union presents no reason why Redwind would not have personal knowledge about her co-workers

or the organization of her work group. Moreover, they do no articulate how the information

contained in ¶¶ 43-46 constitutes opinion testimony, or how these paragraphs are conclusory,

speculative, or conjectural. Finally, it is not a requirement that all statements in a declaration be

supported by other evidence and testimony. Therefore, this objection is overruled.

59. Western Union moves to exclude all of ¶ 47. The court will sustain this objection in

part. The first six sentences of ¶ 47 are admissible. However, the remainder of ¶ 47 is

argumentative, conclusory, and non-expert opinion. Therefore, all but the first six sentences of this

paragraph are stricken.

60. Western Union moves to exclude ¶ 49(c) for hearsay, lack of personal knowledge,

violation of the Best Evidence Rule, and because it is speculative, conclusory, conjectural, and

unsupported by testimony or other evidence. Western Union also contends ¶ 49(c) should be

excluded as argumentative. The court agrees. Paragraph 49(c) violates the Best Evidence Rule by

attempting to prove the contents of an email sent from “Ms. Maya.” Thereafter, Redwind states,

“[t]he defendant redacted much of the conversation but based upon the content, if what is unredacted is this bad, It can be reasoned that what is redacted within the same context must be

damaging to the defendant and why they redacted this information from discovery.” This is

conclusory, speculative, and argumentative, and has no basis in law. Therefore, the court strikes ¶

49(c) from the Redwind Declaration.

\ \ \ \ \

FINDINGS & RECOMMENDATION - 28 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 28 of 52
61. Western Union next moves to exclude ¶ 49(d) in its entirety. The court sustains this

motion, as ¶ 49(d) contains no facts. It consists only of inferences Redwind has drawn from the

evidence and her arguments based on those inferences. Therefore, the court excludes ¶ 49(d). 

62. Western union moves to exclude all of ¶ 50. In ¶ 50, Redwind explains some of her

answers to questions at deposition, particularly her answers to Defendant’s questions about the

injuries she suffered as a result of Western Union’s alleged wrongdoing and whether those injuries

can be separated from the stresses Redwind experiences from pursuing this litigation. Most of ¶ 50

consists of argument not suitable for inclusion in a Declaration. In addition, several portions of ¶

50 include descriptions of Redwind’s medical records which violate the Best Evidence Rule. 

However, several sentences are admissible. Accordingly, the court will exclude all of ¶ 50 except

for the following: (1) “The Defendants continued unlawful activities subjected me to undue stress

that led to physical health problems[.]” (2) “I will state for the record that my health issues were

solely caused by the defendant[.]” (3) “Again, for the record the litigation process itself is not an

undue stressor that negatively [a]ffects my health because I view the litigation process as my

opportunity to seek justice[.]” and (4)”Exhibit 69 is a true and correct copy of the health summary

along with the damages that have manifested in physical due to the undue stress.” The rest of ¶ 50

is inadmissible, and is stricken.

63. In their final objection to the Redwind Declaration, Western Union requests that the

court strike ¶ 51. Paragraph 51 consists of the heading “Retaliation qualifiers:”, followed by a table

articulating twenty different “protected activities,” “adverse employment” actions taken in response

to those allegedly protected activities, as well as “causal links” between the protected activity and

the adverse action. Western Union contends this is unauthenticated demonstrative evidence. They

FINDINGS & RECOMMENDATION - 29 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 29 of 52
also argue the table is conclusory, argumentative, and contains hearsay. The court agrees with

Western Union.

Federal Rule of Evidence 1006 speaks directly on the admissibility of demonstrative charts

to prove the content of voluminous writings. It provides as follows:

The proponent may use a summary, chart, or calculation to prove the content of

voluminous writings, recordings, or photographs that cannot be conveniently

examined in court. The proponent must make the originals or duplicates available

for examination or copying, or both, by other parties at a reasonable time and place. 

And the court may order the proponent to produce them in court.

FED. R. EVID. 1006. Moreover, where a party wishes to rely on a demonstrative chart or summary,

the proponent must “lay a foundation of fairness and accuracy” before the evidence may be admitted

into evidence. U.S. v. Walema, 194 F.3d 1319, at *1 (1999) (Table).

Here, Redwind attempts to summarize and prove the contents of the record in this case. 

However, because this is a motion for summary judgment and not a trial, it is not inconvenient for

the court to review the record, as appropriate and necessary, in consideringWestern Union’s Motion

for Summary Judgment. Because Redwind’s chart does not serve the purpose articulated in Rule

1006 of remedying an inconvenience, the chart is not helpful to the court and is not admissible

evidence. 

Further, Redwind did not lay the foundation to show her chart was a fair and accurate

representation of the evidence it intended to prove. Indeed, doing so would be nearly impossible,

as she relies heavily on hearsay and portrays arguments and opinions as fact. As a result, the court

will exclude the table featured in ¶ 51.

\ \ \ \ \

\ \ \ \ \

FINDINGS & RECOMMENDATION - 30 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 30 of 52
C. Objections to Documentary Exhibits.

Western Union objects to nearly all of Redwind’s documentary exhibits, primarily based

Western Union’s contention that Redwind’s exhibits constitute inadmissible hearsay. The court

sustains in part and overrules in part Western Union’s objections.

1. Statements by Party Opponent.

The court alreadyhas discussed that the out-of-court statements of WesternUnion employees

are admissible as statements of a party-opponent under Rule 801(d)(2). Therefore, the court will

consider all statements by Western Union employees or agents other than Redwind contained in

Exhibits 14, 16, 20-23, 25, 27, 28, 43, 45, 49, 51, 57, 59, 60, 61, 63, 67, 68, and 70-75, so long as

those statements pertain to matters within the scope of the declarant’s agency and employment. The

court will also consider the portions of exhibit 64 which feature statements by Pinnegar. Moreover,

the court has already discussed that exhibits containing the Western Union logo, trademarks, or

official documents produced by Western Union for personnel or human resources reasons are

statements of Western Union admissible under Rule 801(d)(2). Therefore, the court admits Exhibits

1, 2, 4, 5, 8, 9, 15, 19, 35, 38, 40, 50, 56, 62, and 66. However, the court excludes Exhibits 12, 17,

37, 39, 58, and 77. Each consists of out-of-court statements, and Redwind does not meet her burden

of demonstrating that they fall within a hearsay exclusion or exception.

2. Public Records.

Defendants next object to exhibits 48, 77, and 78 as hearsay not subject to the “public 

records” hearsay exception. Redwind argues exhibit 48 is admissible because Western Union has

already authenticated it by providing it in discovery. However, Western Union does not move to

exclude exhibit 48 for lack of authentication; it contends the document is inadmissible hearsay. 

FINDINGS & RECOMMENDATION - 31 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 31 of 52
Therefore, Redwind has not met her burden of establishing exhibit 48 may be presented in

admissible form, and the court will not consider it on summary judgment. Moreover, Redwind does

not describe what Exhibit 48 is or how it is probative of the issues in this case.

Redwind next contends exhibits 76 and 78 are admissible under the public records exception

of Rule 803(8). Rule 803(8) provides that records and statements of a “public office” are admissible,

regardless of hearsay, if:

(A) it sets out:

(i) the office’s activities;

(ii) a matter observed while under a legal duty to report, but not including, in a

criminal case, a matter observed by law-enforcement personnel; or

(iii) in a civil case or against the government in a criminal case, factual findings from

a legally authorized investigation; and

(B) the opponent does not show that the source of information or other circumstances

indicate a lack of trustworthiness.

Here, exhibit 78 is admissible under Rule 803(8), as it is clearly a “Complaint Dismissal

memo” issued by the “Civil Rights Division – Bureau of Labor & Industries” in regards to a

complaint filed by Redwind. The contents of the document demonstrate it is a document of an

investigation and administrative adjudication of Redwind’s BOLI complaint regarding Western

Union’s allegedly discriminatory actions. Similarly, exhibit 76 is the documentation of an

“investigative interview” conducted byCivil Rights Division Interviewer Matthew Butler, the same

investigator who wrote and signed the “Complaint Dismissal Memo” in exhibit 78. Therefore,

exhibits 76 and 78 are admissible under Rule 803(8).

\ \ \ \ \

\ \ \ \ \

FINDINGS & RECOMMENDATION - 32 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 32 of 52
c. Recorded Recollections.

Next, Western Union objects to exhibits 7, 10, 11, 18, 21 (pg 23), 26, 27 (pg. 5 and 43), 44,

58, and 65, and argue these exhibits are hearsay not subject to any exception. Redwind disagrees,

and contends these exhibits are subject to the hearsay exceptions contained in Rules 803(1), (3), and

(5). The court sustains in part and overrules in part Western Union’s objections.

Rule 803(1) provides that hearsay is admissible if it is a “statement describing or explaining

an event or condition, made while or immediately after the declarant perceived it.” Similarly, Rule

803(3) allows a court to admit a hearsay “statement of the declarant’s then-existing state of mind

(such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling,

pain, or bodily health). Rule 803(5) also allows for certain documents regarding a witness’s

recollection to be admitted into evidence. That rule provides that hearsay in the form of “recorded

recollection” is admissible so long it is a record that:

(A) is on a matter the witness once knew about but now cannot recall well enough

to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness’s

memory; and

(C) accurately reflects the witness’s knowledge.

FED. R. EVID. 803(5). Recorded recollections “may be read into evidence but may be received as

an exhibit only if offered by an adverse party.” Id. Moreover, on summary judgment, the threshold

for admitting notes or diary entries created by the proponent is low. Frasier, 342 F.3d at 1037. In

Fraser, the Ninth Circuit reversed a district court’s decision to exclude a witness’s diary on the basis

of hearsay. Id. The court explained that the court’s focus on summary judgment should be the

“contents” of the exhibit, and not its form. Id. The court then observed that the diary or its contents

FINDINGS & RECOMMENDATION - 33 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 33 of 52
“could be admitted into evidence at trial in a variety of ways,” including as a recorded recollection,

through direct testimony of the declarant based on personal knowledge, or to refresh the testifying

witness’s memory. Id. Therefore, the diary was admissible.

Here, exhibits 7, 10, 18, 26 (pg 5), 27 (pg 5 and 43), 58, and 65 are notes and recollections

Redwind prepared. Most of them describe events relevant to this case and meetings between

Redwind and Western Union employees. The notes themselves are hearsay, as they are out-of-court

statements offered for the truth of the matter asserted, and thus inadmissible. However, to the extent

these notes describe factual events or are evidence of present-sense impressions of those events, they

are admissible under the Federal Rules of Evidence and Fraser. Moreover, to the extent these notes

contain “double hearsay” in the form of documenting additional out-of-court statements byWestern

Union employees, those statements are admissible as statements by a party-opponent under Rule

801(d)(2).

The court also concludes exhibit 21, page 23, is not hearsay. Page 23 of exhibit 21 consists

of the very end of Redwind’s email signature. It includes her address, her phone and fax numbers,

and the following quote “My will does not bend and it does not break; it is an evolving fire that

burns those who try to encroach and warns those who are wise enough to keep a safe distance. May

it serve as a light to those lost within the darkness. -Arcane Ravenwolf-.” During McCarty’s review

of King’s ethics investigations, McCarty said he found this quote “vaguely threatening” and thought

the quote confirmed the concerns Pinnegar and Acocelli were raising about Redwind’s

communication problems. Although the quote constitutes an out-of-court statement, it is clearly not

offered to prove the truth of the matter asserted. Whether Arcane Ravenwolf, or Redwind for that

matter, ascribes to the philosophy contained in the quote is not particularly relevant to her claims. 

FINDINGS & RECOMMENDATION - 34 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 34 of 52
Instead, this evidence is offered to show, consistent with Redwind’s arguments on summary

judgment, that this quote is attached to her signature on all emails, and was not intended to target one

Western Union employee in particular. Therefore, this portion of Western Union’s objections is

overruled, and the court will consider exhibit 21, page 23, on summary judgment.

d. Authentication.

The fourth group of exhibits Western Union moves to exclude consists of exhibits 4, 5, 13,

42, 52, and 69 (pages 1-12). Western union argues these exhibits, particularly the demonstrative

exhibits featured in exhibits 13 and 42, are inadequately authenticated under Rule 901.

Exhibit 4 appears to be the Western Union Code of Conduct. Redwind contends this

document has been sufficiently authenticated because Western Union produced this document in

discovery. The court agrees with Redwind. “Documents produced by a party in discovery are

deemed authentic when offered by the party-opponent.” Elston v. Toma, No. CV 01-1124-BR, 2004

WL 1048132, at *3 (D. Or. April 15, 2004) (citing Orr, 285 F.3d at 777 n. 20). Therefore, exhibit

3 is sufficiently authenticated.

Exhibit 5 appears to be the “Western Union Company Domestic Tuition Assistance Plan”

effective January 1, 2008. Redwind contends she obtained this document from Western Union’s

website. The court disagrees with Defendant that Exhibit 5 is inadmissible. Particularly when

reviewing challenges to authentication on summary judgment, the court looks to whether the

contents of the document may be admissible at trial. Here, Redwind has personal knowledge of how

she obtained this document, and given its origin at the Western Union website, it would not be

difficult for her to authenticate this exhibit with her own testimony or the testimony of another

FINDINGS & RECOMMENDATION - 35 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 35 of 52
Western Union employee. Because the contents of Exhibit 5 are admissible, the court will consider

it on summary judgment.

Exhibits 13 and 42 are tables created by Redwind to explain two facets of her job. Exhibit

13 appears to be a list of tasks assigned to Redwind by her managers, descriptions of those tasks,

whether they were completed, and how long each task took. Exhibit 42 is a table with four columns

which explains Redwind’s salary each year between 2008 and 2016. The table includes a separate

column which provides what her salary would be “without pay discrimination.” The final column

contains the difference between Redwind’s actual salary and the alleged salary without

discrimination. 

Western Union contends Redwind fails to show these tables are a “fair and accurate”

depiction of the original evidence. The court agrees in part. Again, the court must analyze whether

the content of the evidence would be admissible at trial. Redwind is competent at trial to testify

regarding the tasks assigned to her by her managers and her yearly salary. Therefore, the court will

consider Exhibits 13 and 42 to the extent the demonstrative exhibits reflect those facts. However,

Redwind does not indicate from where she derived the “salary without pay discrimination” data. 

Without citation to the original document containing these salaries to which Redwind is allegedly

entitled, the demonstrative nature of Exhibit 42, column 3, is not helpful to the court. As such, the

court will not consider columns 3 and 4 of Exhibit 42 headed “Salary without Pay Discrimination”

and “Salary lost each year because of pay discrimination.” Moreover, the court will not consider the

“Running Tally of Pay Discrimination damages” at the bottom of the chart in exhibit 42. 

Exhibit 52 is a table featuring the names of Western Union employees and what appear to

be performance statistics. Redwind testifies in her Declaration that this document is “a true and

FINDINGS & RECOMMENDATION - 36 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 36 of 52
correct copy of the Excel file shared with all employees, like myself, about their year-end net new

agent count.” (Dkt. No. 155 ¶ 7.) Here, Western Union does not meet its burden of showing the

content of Exhibit 52 would be inadmissible at trial. They do not argue regarding the source of

Exhibit 52 or question Redwind’s personal knowledge of its contents. This objection is overruled.

Finally, Exhibit 69 appears to be Redwind’s medical records from doctor visits between

September 2014 and September 2015. Again, Western Union does not meet its burden of

demonstrating the contents of these medical records would be inadmissible at trial. Redwind is fully

competent to testify regarding her medical problems, and could testify to those facts. Moreover,

Redwind could call an employee of her doctor’s office to authenticate the medical records at issue. 

Accordingly, the court will consider Exhibit 69 on summary judgment.

II. Redwind’s Objections.

Redwind objects to portions of the declarations Western Union introduced in support of its

motion for summary judgment. She also moves to strike exhibits attached to those declarations. 

Western Union argues Redwind’s objections are untimely because she filed them well after briefing

was closed on Western Union’s Motion for Summary Judgment. It also argues that even if the court

considers Redwind’s objections, they lack foundation and should be overruled. The court will first

address whether Redwind’s objections are timely and thereafter, consider the merits of Redwind’s

objections.

A. Timeliness.

Western Union argues that Redwind’s evidentiary objections are untimely under Local Rule

of Civil Procedure 56-1(b). Western Union filed its Motion to Dismiss and evidence in support on

July 27, 2015. (Dkt. No. 95-102.) Redwind sought two extensions to file her Response, which

FINDINGS & RECOMMENDATION - 37 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 37 of 52
Redwind ultimately filed on November 25, 2015. (Dkt. No. 109, 141,146-148.) On December 11,

2015, Western Union filed its response and objections to Redwind’s evidence. (Dkt. No. 149.) Just

two days later, Redwind filed a motion for an extension of time to respond to Western Union’s

evidentiary objections, which the court granted. (Dkt. No. 151, 153.) On December, 28, 2015,

Redwind filed her sur-replytoDefendant’s evidentiaryobjections and her own objections to Western

Union’s evidence. 

Local Rule 56-1(b) provides:

Evidentiary Objections

Rather than filing a motion to strike, a party may assert evidentiary objections in its

response or reply memorandum. Evidentiary objections in a response or reply

memorandum are subject to the certification requirements of LR 7-1(a). If an

evidentiaryobjection is raised in the non-moving party’s responsememorandum, the

moving party may address the objection in its reply memorandum; the non-moving

party may not file further briefing on its evidentiary objection. If an evidentiary

objection is raised by the moving party in its reply memorandum, the non-moving

party may file a surreply memorandum pursuant to this subparagraph with seven (7)

days addressing only the evidentiary objection; the moving partymay not file further

briefing on its evidentiary objection. If a party asserts an evidentiary objection in a

motion to strike evidence, no reply memorandum is permitted. Unless otherwise

ordered by the court, any oral argument as to evidentiaryobjections will be scheduled

for the same time as the summary judgment motion.

The court concludes that LR 56-1 does not render Redwind’s objections untimely. The rule provides

that if a movant files objections as part of its reply in support of summary judgment, the nonmovant

has seven days to respond. However, LR 56-1 does not otherwise set any deadlines or time

limitations on when evidentiary objections are due. Instead, the rule is ambiguous at best. 

Moreover, Western Union does not establish it was prejudiced by Redwind’s delay in filing her

objections. Therefore, the court declines in this instance to overrule Redwind’s objections solely on

the basis of untimeliness. 

FINDINGS & RECOMMENDATION - 38 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 38 of 52
Western Union also argues that Redwind’s arguments must be filed within the time allowed

for the non-moving party’s response to the motion for summary judgment. In support they cite

Burch v. Regents of the Univ. of Cal., 433 F. Supp. 2d 1110, 1118-19 (E.D. Cal. 2006). However,

Burch is not binding authority in this district, and Western Union does not demonstrate that the local

rules for this district are the same or similar to those for the eastern district of California, such that

the court should adopt the Burch reasoning. The court, therefore, will consider the merits of

Redwind’s evidentiary objections.

B. Objections to Exhibits.

Redwind objects to exhibits attached to each of Western Union’s evidentiary declarations for

a variety of reasons. Defendants argue Redwind’s objections are inapplicable to strike their exhibits,

and that most of Redwind’s objections appear to focus on the weight the court should afford to the

evidence at issue. The court will address each objection in turn.

1. Exhibit 1 to the Falcone Declaration.

Redwind first objects to Exhibit 1 to the Falcone Declaration and argues that it inaccurately

reflects the job description for her position at Western Union. The court declines to strike this

exhibit. Although Redwind frames her argument as relevancy, she primarily argues that the court

should not afford the exhibit much weight. At summary judgment, the court does not weigh

evidence. Instead, the court is bound to consider the entire record, and deny summary judgment if

the nonmoving party demonstrates a genuine issue of material fact. Therefore, the court overrules

this objection.

\ \ \ \ \

\ \ \ \ \

FINDINGS & RECOMMENDATION - 39 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 39 of 52
2. Exhibits to the Vega Declaration.

Redwind objects to Exhibits 1 and 2 to the Vega Declaration. She argues both are irrelevant,

and that Exhibit 2 is inadmissible hearsay. The court disagrees. Both exhibits are relevant to

Western Union’s argument that it had a legitimate, nondiscriminatory reason for issuing Redwind

the October 1, 2014 “Warning” (the “Warning”) for Redwind’s alleged violation of the Western

Union intellectual property and antitrust policies. Regarding Redwind’s hearsay argument, Exhibit

2 would be admissible at trial as a record kept in the regular course of business under Rule 803(6). 

Accordingly, the court will consider Exhibits 1 and 2 to the Falcone Declaration.

3. Exhibits to the Pinnegar Declaration.

Redwind objects to Exhibits 1, 2, and 6 to the Pinnegar Declaration. The court overrules all

three objections. As to Exhibit 1, Redwind argues it is irrelevant because it is supported by false

statements. Redwind does not raise a cognizable argument to strike Exhibit 1 because her argument

is aimed primarily at the weight the court should afford this evidence. Thus, this objection is denied.

Redwind objects to Exhibit 2 as irrelevant. The court disagrees. This evidence is relevant

background information in this case, particularly to prove that Redwind raised concerns about her

pay and her contention that she was subject to discrimination. Redwind also objects to Exhibit 6 on

relevancy grounds. The court declines to strike Exhibit 6, as it is relevant background information

regarding the online postings which led to the Warning. Accordingly, this objection is overruled.

4. Exhibits to the Acocelli Declaration.

Redwind objects to Exhibit 1 and Exhibits 3-8 of the Acocelli Declaration. She objects to

Exhibit 1 as “sham testimony” which contradicts other evidence. The court declines to strike Exhibit

1, as Redwind fails to cite the allegedly contradictory testimony, and fails to cite authority for the

FINDINGS & RECOMMENDATION - 40 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 40 of 52
proposition that the “sham affidavit” rule may be used to strike an exhibit to a declaration, and fails

to demonstrate how the rule applies to this particular testimony. This objection is overruled.

Redwind next objects to Exhibits 3-8. The court cannot discern the nature of Redwind’s

objection, but to the extent she objects to Exhibit 5 on hearsay grounds, the court overrules that

objection. Exhibit 5 is the “coaching memorandum” which Western Union issued to Redwind

regarding her “professional judgment and interpersonal skills.” This is not hearsay, as Western

Union will be able to introduce the content of Exhibit 5 under Rule 803(6). Because Exhibit 5 is

admissible, the court overrules Redwind’s objection to Exhibits 3, 4, and 6-8 because theyare “being

used . . . to support Exhibit 5.” Redwind does not raise a legally sufficient justification for striking

these exhibits, and the court overrules her objection.

5. Exhibits to the McCarty Declaration.

Redwind objects to Exhibits 6 and 11 as irrelevant and objects to Exhibit 12 as inadmissible

hearsay. The court overrules all three objections. Exhibit 6 is relevant as background information

regarding Redwind’s complaints of pay discrimination and her allegation that Western Union’s

human resources department was “negligent” in investigating her complaints. It is also relevant to

rebut Redwind’s argument that Western Union ignored and otherwise minimized her complaints. 

Exhibit 11 is also relevant to the issues in this case. Specifically, Exhibit 11 is relevant to show that

Redwind had knowledge of the Western Union antitrust policy before she posted the allegedly

violative material on social media websites.

Finally, Exhibit 12 is not hearsay. Western Union will be able to introduce the content of

Exhibit 12 through McCarty’s testimony at trial, likely as a business record under Rule 803(6). 

Redwind’s remaining arguments are not legally sufficient to justify striking the exhibits in question.

FINDINGS & RECOMMENDATION - 41 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 41 of 52
8. Exhibits to Anthony Declaration.

Redwind objects to Exhibits 1-6 of the Anthony Declaration. She objects to Exhibits 1-4 on

relevancy grounds. However, she does not content they are irrelevant because they are not probative

of an issue in this case, but because the documents are not what Western Union says they are. 

Redwind is, in essence, arguing the court should not give these exhibits any evidentiary weight. The

court does not weigh the evidence on summary judgment. Thus, this objection is overruled.

Redwind next objects to Exhibits 5 and 6 because they violate of the Best Evidence Rule. 

The court disagrees. Photocopies are sufficient to satisfy the rule’s requirements. Further,

Redwind’s argument that this exhibit should be inadmissible because the dates on the signature line

of the documents have been changed is unavailing, as she cites no legal authority to support her

argument or how different signature lines affect the exhibit’s admissibility. Therefore, this objection

is overruled.

C. Objections to Declaration Testimony.

Redwind raises ninety-one additional objections to Western Union’s remaining evidence. 

Western Union again argues that Redwind’s arguments are misplaced and do not demonstrate the

inadmissibility of Western Union’s testimonial declarations. Largely, Western Union is correct, and

the court overrules most of Redwind’s objections. However, some of her hearsay objections should

be sustained. 

1. Insufficient Objections.

Before the court addresses Redwind’s objections based on hearsay and relevance, the court

is compelled to make observations on Redwind’s more common objections. First, the court

overrules Redwind’s lack of personal knowledge objections. Each statement to which Redwind

FINDINGS & RECOMMENDATION - 42 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 42 of 52
objected for lack of personal knowledge was made about the declarants’ employment and events

which occurred during the scope of that employment. Each of these declarants is competent to

testify, based on personal knowledge, about events they perceived or participated in during the scope

of their employment. Accordingly, Redwind’s personal-knowledge objections are overruled.

Redwind also objects to many declaration excerpts as violative of the Best Evidence Rule. 

However, none of the objected-to material is introduced to prove the contents of a document. 

Without exception, these statements testify to a decision that the declarant made which were later

memorialized in written form. Therefore, Redwind’s objections based on the Best Evidence Rule

are overruled.

Redwind objects to many portions of the evidentiary declarations because they contain

“sham” testimony. To exclude testimony under the “sham” affidavit rule, the opponent must point

to sworn testimony predating the declaration which directly contradicts the declaration testimony. 

Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012). Redwind fails to do so. Some of her

objections rely on contradictory testimony of other witnesses, others rely on testimony that is not

directlycontradictory. Overall, Redwind’s objections based on the sham affidavit rule are overruled.

The court also overrulesRedwind’s objections for “conclusory, speculative, and conjectural”

testimony. Upon review of the record, none of the objected-to declaration excerpts are conclusory,

speculative, or conjectural. Therefore, these objections are overruled. 

Finally, Redwind raises objections because certain declaration excerpts lack support byother

evidence, and because they are misleading. Redwind does not produce authority for her contention

that either constitutes legally sufficient grounds for striking declaration testimony. Redwind argues

that under Rule 56, a declarant must support his or her testimony by “citing to particular parts of

FINDINGS & RECOMMENDATION - 43 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 43 of 52
material in the record . . . .” This portion of Rule 56 refers to the necessity of including citations to

the record to support statements of fact in a party’s brief. A declarant submitting a testimonial

declaration need not cite to additional evidence in the record to support his or her testimony, so long

as that testimony is based on personal knowledge and not excludable under anotherrule of evidence. 

Therefore, Redwind’s objections based on “misleading” evidence and evidence that is not supported

by citations to the record are overruled.

2. Individual Objections.

Redwind’s remaining objections to Western Union’s declaration testimony are premised

almost exclusively on hearsay and relevance. The court will now address each objection to the

extent it was not addressed above. Those objections which are not specificallymentioned below are

addressed above in the “Insufficient Objections” section.

a. Declaration of Luis Felipe Rodriguez Vega

1. Redwind objects to portions of ¶ 4 for relevance. The court overrules this objection, as

the excerpt to which she objects is relevant to Western Union’s argument that it had legitimate,

nondiscriminatory reasons for taking any employment or personnel actions.

2. Redwind objects to ¶ 5 on the basis of hearsay, but the court overrules this motion because

this excerpt is admissible as a statement of the declarant’s then-existing state of mind under Rule

803(3).

3. Redwind objects to ¶ 6 on the basis of hearsay. The court overrules this objection, as the

objected-to matter is a statement of party opponent. Further, there are no out-of-court statements at

issue and, to the extent this paragraph contains hearsay, they are statements of the declarant’s thenexisting state of mind. 

FINDINGS & RECOMMENDATION - 44 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 44 of 52
4. Redwind objects to portions of ¶¶ 7-9 on the basis of hearsay. The court overrules this

objection because the material cited in Redwind’s objection does not put at issue an out-of-court

statement. To the extent Vega’s testimony contains hearsay statements, they are statements of his

then-existing state of mind admissible under Rule 803(3).

b. Declaration of Craig Pinnegar.

8. Redwind objects to ¶ 6 of the Pinnegar Declaration on the basis of hearsay. The court

overrules this objection, as Pinnegar’s testimony does not put an out-of-court statement at issue. He

is merely explaining the organizational constraints of his job at Western Union.

9. Redwind objects to ¶ 7 on the basis of relevance. The court overrules this objection, as

the objected-to material is relevant to Western Union’s argument that it had legitimate,

nondiscriminatory reasons for taking personnel actions against Redwind.

12. Redwind objects to ¶ 12 on the basis of hearsay. The court overrules this objection, as

the objected-to material contains no out-of-court statement. Accordingly, it is not hearsay under

Rule 801(c).

14. Redwind objects to ¶¶ 14 and 15 on the basis of relevance. The court overrules this

objection, as this material is relevant to Western Union’s argument that Redwind suffered no adverse

employment action.

15. Redwind objects to the following excerpt from ¶ 16: “I identified some opportunities

for growth for Ms. Redwind . . . cited examples where I felt Ms. Redwind could improve her

interactions with colleagues.” The court overrules this objection. Pinnegar offers his out-of-court

statements regarding communications he had with Redwind wherein he “identified” areas of

improvement and “opportunities for growth.” The content contained in this hearsay statement is

FINDINGS & RECOMMENDATION - 45 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 45 of 52
admissible because it is contained in Redwind’s 2012 year-end review, which is admissible as a

business record under Rule 803(6).

16. Redwind objects to the following portion of ¶ 16(a) as inadmissible hearsay: “Ms.

Redwind seemed to be clashing with another colleague, Territory Sales Executive David Vizcaino.

. . . Mr. Vizcaino raised concerns to me about the way Ms. Redwind spoke to him, saying he felt it

was ‘condescending,’ ‘abrupt,’ . . . and ‘short.’ Other peers shared similar concerns with me about

Ms. Redwind’s communications.” The court will sustain this objection in part. The first sentence

does not put at issue an out-of-court statement. To the extent it does, it is admissible as a statement

of Pinnegar’s then-existing state of mind. However, the remainder of this excerpt is inadmissible

hearsay. Pinnegar testifies to Vizcaino’s and others’ out-of-court statements about Redwind’s

behavior, and Western Union does not cite a hearsay exclusion or exception which applies to render

this testimony admissible. 

17. Redwind objects to ¶ 16(b) on the basis of hearsay. The court sustains this objection in

part. To the extent this material contains Redwind’s statements, those are admissible as statements

of a party-opponent under Rule 801(d)(2). However, Pinnegar’s testimony about Wendle Raping’s

email contain out-of-court statements admitted to prove the truth of the matter asserted, and

Defendants do not articulate an applicable hearsay exclusion or exception. Therefore, this objection

is sustained and Pinnegar’s testimony in ¶ 16(b) about Wendle Raping’s email are stricken.

18. Redwind objects to ¶ 17 on the basis of hearsay. The court overrules this objection, as

¶ 17 does not put an out-of-court statement at issue. To the extent it does, it is a statement of

Pinnegar’s then-existing state of mind.

FINDINGS & RECOMMENDATION - 46 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 46 of 52
19. Redwind objects to the following portion of ¶ 19: “These included her interactions with

peers, in light of the reports I had received about Ms. Redwind being ‘condescending,’ ‘abrupt,’ or

‘short.’” The court sustains this objection. Pinnegar testifies to the out-of-court statements of

unnamed declarants that Redwind was condescending, abrupt, or short. Western Union does not

articulate a non-hearsay purpose for which this testimony is offered or articulate an applicable

hearsay exclusion or exception. Therefore, this objection is sustained.

21. Redwind objects to ¶ 20 as hearsay. The court overrules this objection. To the extent

Redwind objects to Pinnegar describing the guidelines of “stack-ranking” policies, which would be

out-of-court statements, those policies are admissible as business records under Rule 803(6). 

Accordingly, this objection is overruled.

23. Redwind objets to ¶ 28 on the basis of relevance. The court overrules this objection, as

this material is probative as authentication of Western Union’s evidence.

24. Redwind objects to ¶ 29 on the basis of hearsay. The court overrules this objection. 

Pinnegar’s testimony is not offered to prove the truth of the out-of-court statement, but to show he

had knowledge of Redwind’s Salesforce postings and his motive for issuing her the Warning. 

Therefore, this material is admissible, and Redwind’s objection is overruled.

28. Redwind objects to ¶ 30 on the basis of hearsay. The court overrules this objection. This

testimony does not put an out-of-court statement at issue. 

29. Redwind objects to ¶ 35 on the basis of hearsay. Pinnegar’s testimony in ¶ 35 does not

put at issue an out-of-court statement. To the extent it does, his testimony is admissible as proof of

Pinnegar’s motive and intent under Rule 803(3).

\ \ \ \ \

FINDINGS & RECOMMENDATION - 47 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 47 of 52
c. Declaration of Randall Acocelli.

30. Redwind objects to ¶ 4 of the Acocelli Declaration on the basis if hearsay and relevance. 

The court overrules this objection. Acocelli’s testimony does not offer an out-of-court statement for

the truth of the matter asserted. He is describing a letter of recommendation he wrote for Redwind. 

Moreover, this evidence is relevant to rebut Redwind’s argument she was subject to an adverse

employment action and a discriminatory environment. 

31. Redwind objects to ¶ 7 on the basis of hearsay. The court overrules this objection, as

any out-of-court statements in the objected-to material are either statements of a party-opponent

under Rule 801(d)(2) or statements of the declarant’s then-existing mental state under Rule 803(3). 

Therefore, these portions of ¶ 7 are admissible.

32. Redwind objects to ¶ 9 on the basis of hearsay. The court overrules this objection, as

the objected-to material consists of the declarant’s then-existing state of mind. 

35. Redwind objects to ¶ 13 on the basis of hearsay. The court overrules this objection, as

the objected-to material does not put in issue an out-of-court statement. Therefore, ths objection is

overruled.

36. Redwind objects to ¶ 15 on the basis of hearsay. The court overrules this objection, as

the objected-to material does not put in issue an out-of court statement. To the extent it does, those

statements are admissible under Rule 803(3).

d. Declaration of Carla Anthony.

37-39 & 41. Redwind objects to ¶¶ 6, 14, 16, and 23 on the basis of hearsay. The court

overrules this objection. To the extent this testimony contains hearsay, those statements are

admissible under the business records exception of Rule 803(6) upon a proper foundation at trial. 

FINDINGS & RECOMMENDATION - 48 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 48 of 52
Anthony sufficiently lays the foundation for application of this exception by testifying these

documents were produced and kept in the regular course of business. Anthony is competent to offer

this foundational testimony, as the production and maintenance of human resources and personnel

documents is within her personal knowledge as the director of human resources for Western Union.

e. Declaration of Marcus McCarty.

42. Redwind objects to ¶ 5 of the McCarty Declaration on the basis of hearsay. The court

overrules this objection, as the objected-to material does not put at issue an out-of-court statement.

44. Redwind objects to ¶ 8 on the basis of hearsay. The court overrules Redwind’s

objection, as she fails to sufficiently explain how her objection applies to strike the material at issue.

45. Redwind objects to ¶ 9 on the basis of hearsay. The court overrules this objection, as

any hearsay objection in her forty-fifth objection are statements of a party-opponent under Rule

801(d)(2).

46. Redwind objects to ¶ 11 on the basis of hearsay. The court overrules this objection

because Redwind fails to adequately explain how her objection applies to the matter at issue.

47. Redwind objects to ¶ 10 on the basis of hearsay. The court overrules Redwind’s

objection, as the objected-to material does not put at issue an out-of-court statement. To the extent

it does, those are statements of the declarant’s then-existing state of mind.

48. Redwind objects to ¶ 12 on the basis of hearsay. The court overrules this objection, as

the statements at issue in ¶ 12 are admissible asstatements of a party-opponent under Rule 801(d)(2). 

Therefore, this objection is overruled.

49. Redwind objects to ¶ 15 on the basis of hearsay. In particular, Redwind objects to

Acocelli’s testimony that he spoke with Redwind about “three separate email responses from Ms.

FINDINGS & RECOMMENDATION - 49 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 49 of 52
Martinez explaining whyMs. Martinez believed the email was appropriate feedback to Ms. Redwind

about how Ms. Redwind should communicate with colleagues about an issue that had arisen with

an agent in Mexico.” The court sustains this objection to the extent McCarty’s testimony describes

Ms. Martinez’s out-of-court statements. They are introduced to demonstrate Ms. Martinez’s

response was appropriate, and that Martinez and other Western Union managers viewed Redwind’s

interpersonal and communication skills as lacking. Western Union does not articulate a hearsay

exclusion or exception that applies. Therefore, the court will sustain this objection.

50. Redwind objects to ¶ 16 on the basis of hearsay. The court overrules this objection. The

content of the out-of-court statements in ¶ 16 is admissible because the report of McCarty’s

investigation report is admissible as a business record produced and maintained in the regular course

of business. McCarty is competent to testify as to the foundational evidence as general counsel to

Western Union.

51-52. Redwind objects to ¶ 18 on the basis of hearsay. The court overrules this objection,

as the objected-to statements are admissible as statements of a party opponent under Rule 801(d)(2).

53. Redwind objects to portions of ¶ 19 on the basis of hearsay and relevance. The first

objected-to passage is admissible as a statement of a party-opponent, and is relevant to rebut

Redwind’s contention that Western Union’s Human Resources Department did not sufficiently

investigate her complaints. The third passage to which Redwind objects, from “In that email

exchange . . .” to “many of my questions” is not hearsay, as it does not put at issue an out-of-court

statement. McCarty does not explain the content of his “additional questions,” but explains his

motive for asking them. This testimony is also relevant to Western Union’s argument it conducted

a proper investigation of Redwind’s complaints.

FINDINGS & RECOMMENDATION - 50 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 50 of 52
Redwind’s second objection also is overruled. McCartytestifies: “Itruthfullyresponded that

the questions she raised were being ‘thoroughly investigate[d],’ but that it was not the ‘normal

practice of the Ethics Office to provide that much detail to anyof the participants in an investigation’

regarding ‘past and current investigations.” Because of his position, McCarty would have personal

knowledge of the manner in which Defendant’s Ethics Office investigates and responds to

complaints, and how it provides information about those investigations. Therefore, this objection

is overruled.

54. Redwind objects to ¶ 20 on the basis of relevancy and hearsay. This objection is

overruled. To the extent it contains hearsay, it is admissible as a statement of a party-opponent. 

Moreover, this material is relevant to explain McCarty’s actions investigating Redwind’s ethics

complaints.

55 & 56. Redwind objects to ¶ 22 and 23 on the basis of hearsay. The court overrules this

objection, as the objected-to material does not contain an out-of-court statement. 

57-97. The remainder of Redwind’s objections consist of motions to strike portions of

Western Union’s Motion for Summary Judgment. The court overrules each objection. Evidentiary

objections are a procedural vehicle to limit the evidentiaryrecord and exclude inadmissible evidence. 

They are different from the legal and factual arguments a party presents in memorandum in support

of or opposition to a motion for summary judgment. Redwind does not cite any legal authority for

her argument that portions of a legal brief may be stricken for violating the rules of evidence. 

Therefore, Redwind’s objections 57-97 are overruled.

\ \ \ \ \

\ \ \ \ \

FINDINGS & RECOMMENDATION - 51 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 51 of 52
Conclusion

For the aforementioned reasons, Western Union’s evidentiary objections are SUSTAINED

in part and OVERRULED in part. Redwind’s evidentiary objections are also SUSTAINED in part

and OVERRULED in part, and her Motion (ECF No. 156) to Strike Evidence is GRANTED in part

and DENIED in part.

IT IS SO ORDERED

This 2 day of May, 2016. nd

 /s/ John V. Acosta 

 JOHN V. ACOSTA

United States Magistrate Judge

FINDINGS & RECOMMENDATION - 52 [RMD]

Case 3:14-cv-01699-AC Document 182 Filed 05/02/16 Page 52 of 52