Dubey v. Concentric Healthcare Solutions LLC

D. Ariz.8/28/2025

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1 WO
2
3
4
5
6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA

8

9 Jenessa Dubey, No. CV-22-02044-PHX-DJH

10 Plaintiff, AMENDED ORDER

11 v.

12 Concentric Healthcare Solutions LLC and
Robert Bales,
13
Defendants.
14
15 This Order amends the Court’s June 13, 2025, Order on Defendants’ Motions in
16 Limine (Doc. 111) to correct misstatements made at footnote 1 and on page 2 at lines 2–4,
17 10–12, and 19–21.
18 Defendants have moved, in limine, to (1) preclude Plaintiff’s Exhibit 86 (Doc. 102);
19 (2) preclude her from introducing Mr. Kyle Silk’s deposition testimony at trial (Doc. 103);
20 and (3) preclude her from introducing her text message communications with Ms.
21 Stephanie Abbott (Doc. 106). Plaintiff has responded to each of these Motions.
22 (Docs. 107, 108 & 109). The Court will address Defendants’ Motions in turn.
23 I. Background1
24 Plaintiff will proceed to trial on her claims for 1) Failure to Pay Wages against
25 Concentric Healthcare; 2) Sex-Based Discrimination against Concentric Healthcare, 3)
26 Sexual Harassment against all Defendants, 4) Intentional Infliction of Emotional Distress
27 (“IIED”) against all Defendants; and 5) Interference in Violation of the FMLA against

28 1 The Court’s Summary Judgment Order more fully describes the background and history
of allegations involved in Plaintiff’s remaining claims. (See Doc. 94).
1 Concentric Healthcare. (Doc. 94 at 31). Plaintiff’s claims involve her work at Concentric
2 from August 2016 through December 2, 2021—the date she was terminated as summarily
3 described below.
4 In 2017, Plaintiff was promoted to Account Manager for the Per Diem Nursing
5 division and in December of 2019 she was promoted to Director of this division. Shortly
6 after her promotion, Plaintiff claims she was sexually assaulted by one of Concentrics’s
7 owners, Chris Bollinger, after a company holiday party.
8 Around May of 2020, Plaintiff learned that Nate Belcher—the Travel Division
9 Director—referred to her as the “redheaded devil,” and stated that someone should kill her
10 and put her out of her misery. Belcher encouraged his team to participate in a game of “a
11 hundred ways to kill the redheaded devil.” No action was taken when Plaintiff reported
12 Belcher to Human Resources. Instead, Defendant Bales told Plaintiff to “forget about it.”
13 Shortly after her promotion, Plaintiff claims she was sexually assaulted by one of
14 Concentrics’s owners, Chris Bollinger, after a company holiday party. Once, Plaintiff
15 attempted to speak with Mr. Silk to voice concerns over a meeting she had with Defendant
16 Bales and Ms. Riley, but “[he] cut Plaintiff off and said, ‘why do you have to take
17 everything personally, why are you women so emotional. I’m done with this.’ ” (citations
18 omitted).
19 Plaintiff requested and was granted leave under the Family and Medical Leave Act
20 (“FMLA”) from November 4 to November 22, 2021. Upon her return, she was bombarded
21 with changes to her program area. Plaintiff attempted to meet with one of her team
22 members but was instead issued a corrective action by Defendant Bales. This was the first
23 time that Plaintiff was told that she could not meet with her team members one-on-one.
24 The next two days, November 23rd and 24th of 2021, Plaintiff took sick days by texting
25 and calling both Defendant Bales and Ms. Riley. Defendant Bales informed Plaintiff that
26 she did not have any Paid Time Off. Concentric was closed for Thanksgiving and Plaintiff
27 did not show up for work on November 30, December 1, or December 2 and was ultimately
28 terminated.
1 II. Legal Standards – Motions in Limine
2 “Although the Federal Rules of Evidence do not explicitly authorize in limine
3 rulings, the practice has developed pursuant to the district court’s inherent authority to
4 manage the course of trials.” Luce v. United States, 469 U.S. 38, 40 n.4 (1984). Motions
5 in limine “allow parties to resolve evidentiary disputes ahead of trial, without first having
6 to present potentially prejudicial evidence in front of a jury.” Brodit v. Cabra, 350 F.3d
7 985, 1004–05 (9th Cir. 2003) (citations omitted). Generally, motions in limine that seek
8 exclusion of broad and unspecific categories of evidence are disfavored. See Sperberg v.
9 Goodyear Tire and Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). Motions in limine are
10 “entirely within the discretion of the Court.” Jaynes Corp. v. American Safety Indem. Co.,
11 2014 WL 1154180, at *1 (D. Nev. March 20, 2014) (citing Luce, 469 U.S. at 41–42).
12 Moreover, “[a] motion in limine is not the proper vehicle for seeking a dispositive ruling
13 on a claim, particularly after the deadline for filing such motions has passed.” Hana Fin.,
14 Inc. v. Hana Bank, 735 F.3d 1158, 1162 (9th Cir. 2013), aff’d, 135 S. Ct. 907 (2015) (citing
15 Dubner v. City & Cnty. of S.F., 266 F.3d 959, 968 (9th Cir. 2001). Motions in limine are
16 “provisional.” Goodman v. Las Vegas Metro. Police Dep’t, 963 F.Supp.2d 1036 (D. Nev.
17 2013), aff’d in part, rev’d in part, and dismissed in part on other grounds, 613 F. App’x
18 610 (9th Cir. 2015).
19 Since the Court issues its rulings on the record currently before it, rulings on these
20 motions “are not binding on the trial judge [who] may always change his [or her] mind
21 during the course of a trial.” Id. (quoting Ohler v. United States, 529 U.S. 753, 758 n.3
22 (2000) (citing Luce, 469 U.S. at 41 (noting that in limine rulings are always subject to
23 change, especially if the evidence unfolds in an unanticipated manner))). “Denial of a
24 motion in limine does not necessarily mean that all evidence contemplated by the motion
25 will be admitted. Denial merely means that without the context of trial, the court is unable
26 to determine whether the evidence in question should be excluded.” Id. (quoting Ind. Ins.
27 Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846 (N.D. Ohio 2004)).
28 / / /
1 A. Burden of Proof
2 Motions to exclude evidence require the party seeking exclusion to inform the Court
3 of the evidence’s substance with specificity. See Fed.R.Evid. 103(a)(2); United States v.
4 Bradford, 905 F.3d 497, 505 (7th Cir. 2018) (finding a motion in limine did not satisfy
5 Rule 103(a)’s specificity requirement by failing to identify the specific evidence or explain
6 its admissibility).2 The party offering the evidence and testimony at trial bears the burden
7 of proof that it is relevant under Rule 401 and not prejudicial under Rule 403. Federal Rule
8 of Evidence 401 provides that “[e]vidence is relevant if it has any tendency to make a fact
9 more or less probable than it would be without the evidence and the fact is of consequence
10 in determining the action.” Fed. R. Evid. 401. Under Rule 402, relevant evidence is
11 admissible unless otherwise provided. Fed. R. Evid. 402. However, all relevant evidence
12 is subject to the balancing test set forth by Rule 403. That is, a court “may exclude relevant
13 evidence if its probative value is substantially outweighed by a danger of one or more of
14 the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
15 wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
16 III. Defendants’ Motions in Limine
17 A. Motion in Limine No. 1 (Doc. 102) Re: Exhibit 86 (Covid-19 Email)
18 Defendant first moves to preclude Plaintiffs from introducing Exhibit 86 into
19 evidence; an email written by Concentrics’s owner, Kyle Silk, to employees stating his
20 views on Covid-19. (Doc. 102 at 1). The email, dated June 26, 2020 states:
21 Good Afternoon, First, I would like to thank everyone for going to get
tested for the flu this morning.
22
Secondly, it’s come to my attention that the usual suspects in the
23 office are complaining aloud (of course) that they had to come back to the
24 office after being tested. I’d like to alert you to the fact that we didn’t need
to arrange the testing. We thought it would be a considerate thing to do given
25 that most of you haven’t been tested. I would also like to extend the invitation
26 to not return until you’re fully satisfied that all people are negative and you
can safely return feeling warm and cozy inside. Of course[,] you won’t be
27

28 2 Except where otherwise noted, all “Rule” references are to the Federal Rules of
Evidence.
1 paid for the time you decide to sit it out.
2 Lastly, if anyone is disgruntled by the way we are choosing to handle
our business please know that quitting is an option as well. No hard feelings.
3
We will only choose to work with colleagues that can set the drama and
4 silliness aside and come in and do their jobs like professionals. Everything
else is nothing but an unproductive distraction. So, I see this as an
5
opportunity for some to weed themselves out of the company voluntarily. I
6 look forward to seeing only our colleagues who can set aside the hysterics
and pearl clutching next week. Have a great weekend.”
7
(Doc. 102-1 at 2–3).
8
Defendants assert that this email is irrelevant to any issue in the case and its
9
probative value is outweighed by the danger of unfair prejudice. (Doc. 102 at 1).
10
Defendants also assert that “the only cause of action [it] is arguably relevant to is Plaintiff’s
11
claim for intentional infliction of emotional distress” but that Plaintiff has not alleged that
12
this email to Concentric staff was extreme and outrageous.” (Id. at 2). Defendants further
13
argue that the email could evoke strong feelings among jurors who lived through Covid-
14
19 and may be angered by the email. (Id.).
15
Plaintiff disagrees asserting that the email, from Concentrics President, Kyle Silk,
16
“is a demonstration of [his] attitude, management and interactions with employees of
17
Concentric, including [Plaintiff] . . . [and] an example of his conduct toward his employees,
18
including his disregard for the health, safety, concern, and well-being of them, including
19
[Plaintiff]. (Doc. 107 at 2). Plaintiff also explains that she had a child with a terminal heart
20
defect so she was concerned about Covid affecting her health and the health of her child
21
when she received the email. (Id.) Plaintiffs assert that the email “goes directly to whether
22
Defendants subjected her to a hostile work environment” so it is relevant and supportive of
23
her claim. (Id.) The Court agrees.
24
Plaintiff has asserted a claim for Intentional Infliction of Emotional Distress against
25
all Defendants. The Court previously found that certain instances of conduct, by
26
themselves or in the aggregate, are “beyond all possible bounds of decency” and that
27
Plaintiff demonstrated Defendants either intended to cause Plaintiff emotional distress or
28
1 recklessly disregarded the near certainty that such distress would result from their
2 individual or combined forms of conduct. (Doc. 94 at 22–23). Mr. Silk’s email was
3 directed to all staff, including Plaintiff, and it is probative of the Defendants management
4 style and how Mr. Silk addressed employee concerns during a national health pandemic.
5 Singularly, the email may be of limited probative value of Defendants work environment.
6 However, together with other instances of conduct and communication, it is relevant to
7 Plaintiff’s Intentional Infliction of Emotional Distress claim. Therefore, the Court will, at
8 this time, deny the Motion.3
9
The Defendants Motion in Limine No. 1 (Doc. 102) is therefore denied.
10
B. Motion in Limine No. 2 (Doc. 103) Re: Kyle Silk’s Deposition Transcript
11 and Video
12 Defendants next move to preclude Plaintiff from introducing Kyle Silk’s deposition
13 testimony related to two prior lawsuits against Concentric. (Doc. 103 at 1). The first
14 lawsuit was filed by Jennifer Quintiliani in 2010 and settled by Concentric for $90,000.
15 (Id. at 1–2). The second lawsuit was filed by Kendra Rightsell in 2019 relating to her rights
16 under the FLMA in which a jury rendered a verdict in her favor. (Id. at 2). Defendants
17 assert that the testimony is not relevant to Plaintiff’s case and that “Federal Rule of
18 Evidence 404(b) specifically prohibits the admission of other ‘wrongs’ or [‘]acts’ ‘to prove
19 a person’s character in order to show that on a particular occasion the person acted in
20 accordance with the character.’ ” (Id.) They say that Kyle Silk’s “testimony about
21 Quintiliani and Rightsell’s allegations, and the determination by the jury that Concentric
22 and Silk violated Rightsell’s FMLA rights, suggests that Concentric likely violated
23 Plaintiff’s rights in this case” so, the Court should prohibit it. (Id.) Defendant’s also assert
24 that Rule 408 prohibits using settlement offers or agreements to prove the validity of a
25 disputed claim in an unrelated matter and that its probative value is outweighed by undue
26 prejudice. (Id. at 3).
27
3 The Court notes the Parties different version about whether or how Exhibit 86 came to
28 light. At the Final Pretrial Conference the Parties should be prepared to inform the Court
precisely how and when Exhibit 86 was disclosed.
1 Plaintiff counters that “Ms. Dubey is not introducing the evidence for the settlement
2 amounts or the jury findings of violations of the FMLA to establish her claims here. She
3 is introducing this evidence to demonstrate Mr. Silk’s and Concentrics’s willful disregard
4 for its legal obligations.” (Doc. 108 at 3). Plaintiff also asserts that her claim for failure to
5 pay wages permits discretion of an award of treble damages upon a finding of a lack of
6 good faith by the Defendants. (Id.) So, as Plaintiff argues, the testimony of Concentrics’
7 “cavalier attitude” towards complying with the law is directly relevant to a finding of bad
8 faith. (Id.) Plaintiff proffers the following excerpt as relevant to her claims:
9 Q: Do you know why you and Concentric were found liable for
having violated FMLA?
10
A: Because the jury made the – came to the wrong verdict.
11
Q: Why did the jury come to the wrong verdict?
12
A: Well, because in my opinion, the companies are at a disadvantage
13 when an employee brings a plan.
14 Q: Do you think that you or Concentric did anything wrong with
regards to Ms. Rightsell?
15
A: Absolutely not.
16
Q: Have you made any changes in Concentric since losing the jury
17 verdict.
18 A: No.
19 Q: Were there allegations in that lawsuit that Concentric employees
had destroyed evidence?
20
A: No[t] that I’m aware of.
21
Q: Were you aware that there were allegations that Concentric
22 employees had destroyed notebooks containing information relating
to Ms. Rightsell?
23
A: No. I mean, allegations are meaningless to me. I don’t give them
24 much credence. Anyone can allege anything.”
25
(Doc. 108 at 3-4).
26
As an initial matter, the deposition testimony alleges that Concentric spoliated
27
evidence. The Court is not aware that in the present case, any Defendant is alleged to have
28
done so. Since there are no allegations of spoliation, the testimony regarding those
1 allegations in Rightsell are likely irrelevant under Rule 401. Therefore, references to
2 spoliation are inadmissible.
3 The standard for relevance under Rule 401 is liberal. United States v. Velazquez,
4 125 F.4th 1290, 1295 (9th Cir. 2025). Plaintiff believes that the testimony about the
5 settlement and the lack of changes after the jury verdict demonstrate Concentrics’s “willful
6 disregard for its legal obligations.” (Doc. 108 at 3). She also offers that the lack of changes
7 after the jury verdict relates to showing a lack of good faith to permit an award of treble
8 damages for Plaintiff’s claim for a failure to pay wages. (Id.) Mr. Silk’s awareness of
9 these cases, which are akin to Plaintiff’s allegations, is sufficient to establish relevance.
10 Fed. R. Evid. 401. They are probative of Mr. Silk’s refusal to state whether he would make
11 changes to the Defendants’ conduct in the event of an adverse verdict. See Velazquez, 125
12 F.4th at 1295.
13 1. Rule 404
14 Defendants also rely on Rule 404 to argue for precluding evidence of the settlement
15 and jury verdict. (Doc. 103 at 2–3). This Rule prohibits the use of evidence of “any other
16 crime, wrong, or act . . . to prove a person’s character in order to show that on a particular
17 occasion the person acted in accordance with that character.” Fed. R. Evid. 404. However,
18 the evidence may be admissible if used for another purpose, such as demonstrating
19 “motive, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
20 accident.” Id. A district court has wide discretion if the evidence is offered for a proper
21 purpose. United States v. Johnson, 132 F.3d 1279, 1282 (9th Cir. 1997).
22 Courts consider the following factors to analyze evidence for admission under Rule
23 404(b): “(1) the evidence tends to prove a material point; (2) the prior act is not too remote
24 in time; (3) the evidence is sufficient to support a finding that the defendant committed the
25 other act; and (4) (in cases where knowledge and intent are at issue) the act is similar to the
26 offense charged.” United States v. Verduzco, 373 F.3d 1022, 1027 (9th Cir. 2004). If
27 evidence is relevant to a permitted purpose under Rule 404(b), “the district court should
28 admit the evidence unless its prejudicial impact substantially outweighs its probative
1 value.” Johnson, 132 F.3d at 1282. In some circumstances, a limiting instruction can cure
2 any such prejudicial effect. United States v. Hadley, 918 F.2d 848, 852 (9th Cir. 1990).
3 Mr. Silk’s testimony regarding Rightsell falls under at least one of the exceptions to
4 Rule 404(b): the absence of mistake exception. See Fed. R. Evid. 404(b). This testimony
5 is probative of Defendants notice of violations followed by a willful failure to meet its legal
6 obligations. See Munger v. Cascade Steel Rolling Mills, Inc., 544 F. Supp. 3d 1078, 1091
7 (D. Or. 2021) (stating that one of the elements of an FMLA claim is that the employer
8 denied the employee FMLA benefits to which he was entitled). Both the settlement and
9 the jury verdict are relevant and go to a material point: Defendants’ disregard for their legal
10 obligations and a lack of good faith. See Johnson, 132 F.3d at 1282; Verduzco, 373 F.3d
11 at 1027. Neither are too remote in time: the settlement was approved in December 2017,
12 see Quintiliani v. Concentric Healthcare Solutions, LLC, 2:10-cv-01363-SMM, ECF No.
13 154 (D. Ariz. Dec. 18, 2017), and the jury verdict was entered in July 2023, see Rightsell
14 v. Concentric Healthcare Solutions LLC, 2:19-cv-04713-GMS, ECF No. 163 (D. Ariz. July
15 14, 2023). Concentric had a settlement with Ms. Quintiliani and received an adverse jury
16 verdict in the Rightsell case. (See Doc. 103 at 1–2). Thus, the testimony is admissible
17 under Rule 404(b) to show an absence of mistake. See Johnson, 132 F.3d at 1282; Fed. R.
18 Evid. 404(b)(2). Furthermore, any potential prejudicial impact of this testimony can be
19 addressed a limiting instruction. See Hadley, 918 F.2d at 852.
20 2. Rule 408
21 Defendants argue that Rule 408 prohibits the use of Mr. Silk’s testimony that
22 Concentric paid Ms. Quintiliani $90,000 in a settlement. (Doc. 103 at 3). Rule 408
23 prohibits the use of settlement offers or negotiations to prove the validity of a claim, but
24 such evidence may be offered “for another purpose, such as proving a witness's bias or
25 prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal
26 investigation or prosecution.” Fed. R. Evid. 408. There are two main policy justifications
27 for Rule 408: first, an offer of settlement may not reflect any weakness of position; and
28 second, public policy favors settlement of disputes. Zucchella v. Olympusat, Inc., 2023
1 WL 2633947, at *11 (C.D. Cal. Jan. 10, 2023) (citing Hudspeth v. Comm’r of Internal
2 Revenue Serv., 914 F.2d 1207, 1213–14 (9th Cir. 1990)). Rule 408 applies “where the
3 party seeking to introduce evidence of a settlement was not a party to the original
4 settlement.” Id.
5 Mr. Silk’s testimony regarding the settlement is permissible only if it is offered for
6 a purpose other than to prove or disprove the validity of a claim. Fed. R. Evid. 408. Here,
7 Plaintiff intends to offer this evidence to show Defendants’ disregard for their legal
8 obligations and their lack of good faith. (Doc. 108 at 3). Both uses related to elements of
9 her claims, not to show another purpose such as proving a witness’s bias or prejudice.
10 Moreover, both policy justifications of Rule 408 are implicated here—the settlement is not
11 proof of Defendants’ wrongdoing, and using settlement offers to prove the validity of
12 claims discourages the settlement of disputes. See Zucchella, 2023 WL 2633947, at *11.
13 Therefore, Mr. Silk’s testimony about settling Ms. Quintiliani’s claims for $90,000 is
14 inadmissible under Rule 408. See id. Moreover, jury confusion over the use of the
15 settlement testimony may lead to undue prejudice. That is, a jury may conclude that may
16 be confused given that Plaintiff intends to use the settlement to prove her claim.
17 In sum, the Court will deny the Defendants Motion in Limine (Doc. 103) as it relates
18 to Mr. Silk’s testimony about the Rightsell jury verdict and Concentrics conduct thereafter.
19 It will grant the Defendants Motion as it relates to spoliation of evidence and the Quintiliani
20 settlement.
21 C. Motion in Limine No. 3 (Doc. 106) Re: Text Messages Between Plaintiff
and Stephanie Abbott
22
Defendants ask the Court to preclude Plaintiff from introducing her text messages
23
with Stephanie Abbott, a friend and former Concentric employee “because they are classic
24
hearsay[.]” (Doc. 106 at 1). Plaintiff acknowledges that they are hearsay but argues that
25
they fall under the exceptions of Present Sense Impression and Then Existing Mental,
26
Emotional and Physical Condition. (Doc. 109 at 2).
27
Defendants provide over 100 pages that include a variety of text messages,
28
photographs and assorted communications from Plaintiff to others in Concentric. On its
review, the Court notes that the proffered exhibits include communications not only with
2|| Ms. Abbott, but from Plaintiff to Erika Shapiro. The Court will not issue a ruling as to
3|| each of these pages. The Court will direct Plaintiff to adhere to the Federal Rules of
4|| Evidence and Procedure and establish proper foundation for each exhibit (and text
5 || contained therein) it intends to introduce into evidence (Doc. 106; Exhs. 1-9). Each exhibit
6 || must be relevant to one of the remaining claims and admissible under one of the exceptions
|| to the prohibition against admitting hearsay evidence. See Rule 803(1) — (5). Accordingly,
8 || at this time, the Court will not preclude text messages from Plaintiff.
9 The Defendants Motion in Limine (Doc. 106) is denied.
10 Accordingly,
11 IT IS ORDERED that Defendants Motions in Limine No. 1 (Doc. 102) and No. 3
(Doc. 106) are DENIED;
13 IT IS FURTHER ORDERED Defendants Motion in Limine No. 2 (Doc. 103) is
|| GRANTED in part and DENIED in part, as set forth in this Order.
15 Dated this 28th day of August, 2025.
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19 United States District Fudge
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Dubey v. Concentric Healthcare Solutions LLC

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