MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Defendant City of Albuquerque's ("the City's") Motion in Limine to Exclude Evidence of Other Supposed Allegations of Improper Conduct Against Michael Padilla [Doc. 80], filed September 13, 2010. The Court, having considered the motion, the briefs of the parties, and the applicable law, and otherwise being fully advised, finds that the Motion shall be granted in part and denied in part.
I. INTRODUCTION AND BACKGROUND
To prevail on her hostile work environment claim at trial, Lopez must demonstrate that she was subjected to a sexually hostile work environment by Padilla for which the City may be liable. Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007). The City is vicariously liable for a hostile work environment created by Padilla if Lopez proves that Padilla had supervisory authority over her, and that the affirmative defense recognized by the United States Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) does not apply. Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1270 (10th Cir. 1998). Alternatively, the City may be liable, under a negligence standard, if Lopez proves that the City knew or should have known about the hostile work environment to which Lopez was subject and failed to respond in a timely and appropriate manner. Id. Under the latter theory of liability, the City may face liability for the hostile work environment regardless of whether Padilla was Lopez's supervisor, co-worker, or a third-party at the time. CITE.
In its motion in limine, the City seeks the exclusion of evidence of allegations of workplace misconduct by Padilla. More specifically, it seeks to exclude 1) testimony or other evidence regarding the alleged sexual harassment of employees at Padilla's prior places of employment, including the testimony of Claudia Rodriguez Guzman and Monica Rios; 2) the report and testimony of the City's private investigator, Robert Casey; 3) . . .
A. Evidence of Allegations of Sexual Harassment by Padilla at Prior Places of Employment is Excluded
The Court will exclude, under Federal Rule of Evidence 403, testimony or evidence related to allegations of sexual harassment made against Padilla at his prior places of employment, including GE Consumer Finance and MCIT Telecommunications unless Lopez can establish that the City knew of such allegations prior to the filing of the internal complaint by Lopez and other women on March 7, 2007.
Although Lopez has not outlined the specific evidence of prior sexual harassment allegations that she intends to introduce, her proposed Witness List (Doc. 79) indicates that she "may" call Moncia Rios, Claudia Rodriguez, and Claudia Ponce*fn1 to testify regarding Padilla's "prior sexual harassment complaints." (Doc. 79, at 7.) Similarly, in her Response to Defendant's Motion for Summary Judgment, Lopez suggested that Padilla's conduct toward "women that he formerly worked with, i.e., Monica Rios, Claudia Guzman" was relevant evidence that the Court could consider at the summary judgment stage. (Doc. 48, at 25.)
Because the alleged incidents of prior sexual harassment occurred outside of Padilla's employment with the City, they are not relevant to establish the environment in which Lopez and other women worked with Padilla at the City. See Hicks v. Gates Rubber Co., 833 F.2d. 1406, 1415 (10th Cir. 1987) (concluding that incidents of sexual harassment involving employees other than the plaintiff are relevant in establishing the general work atmosphere, but apparently limiting the inquiry to harassment of those "working alongside" the plaintiff). Moreover, it is clear that it would be improper for Lopez to present evidence of alleged sexual harassment by Padilla at his prior places of employment in order to establish that Padilla sexually harassed her at the 911 Center. See Fed. R. Evid. 404(b).
Under Federal Rule of Evidence 404(b), evidence of prior bad acts may be admissible for purposes other than proving character of a person, such as proof of motive, intent, and knowledge. Fed. R. Evid. 404(b). Lopez argues that evidence of sexual harassment allegations against Padilla at his prior places of employment is relevant to demonstrate 1) notice to the City, and 2) discriminatory intent or motivation. Both of these purposes are permissible under 404(b). However, the inquiry does not end with the purpose of the evidence.
Evidence of prior bad acts, even if offered for a proper purpose, is admissible only if 1) it is relevant under Fed. R. Evid. 401; 2) the probative value of the evidence is not substantially outweighed by its potential for unfair prejudice under Fed. R. Evid. 403; and 3) the district court, upon request, instructs the jury to consider the evidence only for the purpose for which it was admitted. Wilson v. Muckala, 303 F.3d 1207, 1217 (10th Cir. 2002).
With regard to notice, Lopez reasons that sexual harassment allegations against Padilla at prior places of employment are relevant to establishing that the City had notice of Padilla's sexual harassment of women. While the Court agrees with the general proposition that evidence of prior sexual harassment allegations or claims may sometimes be relevant to show an employer's notice, this is only true when the allegations or claims are communicated to the employer or the employer had reason to be aware of them. In contrast, here, even if sexual harassment claims were made against Padilla at GE Consumer Finance or other places of employment, there is no evidence that the claims were communicated to the City or that the City had reason to be aware of them.*fn2
Next, Lopez argues that evidence of sexual harassment by Padilla at prior places of employment is also relevant to show discriminatory intent or motivation. Lopez emphasizes that the City denies that Padilla's conduct was sexual or discriminatory. Proof of motive or intent is a proper purpose for the evidence of prior sexual harassment. See Fed. R. Evid. 404(b); Wilson, 303 F.3d at 1217. Nevertheless, in this case, evidence of sexual harassment by Padilla at prior places of employment must be excluded, though it may be offered by Lopez for a proper purpose, because its probative value is substantially outweighed by its potential for unfair prejudice.
Without notice to the City of the prior sexual harassment allegations,*fn3 evidence of the allegations simply has no bearing on the City's discriminatory intent. Wilson, 303 F.3d at 1217 (noting that because the plaintiff conceded that her employer had no notice of the alleged prior incidents of sexual harassment, the testimony could not have been sought to prove the employer's discriminatory intent). Instead, the evidence can only relate to Padilla's discriminatory intent or motive. Although Padilla is no longer a party to this action, his discriminatory intent may still be relevant to Lopez's claim against the City, as she must prove that she was subjected to unwelcome conduct by Padilla that was based on sex. Cf. Trujillo v. Univ. of Colo. ...