Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00421-MSK-PAC

Document 81

Filed 02/09/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-MK-421 (OES) CLAIRE FITZGERALD, Plaintiff(s), vs. ALBERTO R. GONZALES, Attorney General, U.S. Department of Justice (Federal Bureau of Prisons), Defendant(s).

DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION IN LIMINE TO EXCLUDE DEFENDANT'S EXHIBIT 36

COMES NOW Defendant Alberto R. Gonzales, Attorney General, United States Department of Justice, and for his Response to Plaintiff's Motion in Limine to Exclude Defendant's Exhibit 36 (Doc. No. 77) states as follows: Contrary to Plaintiff's assertion, she is not simply claiming that she was sexually harassed and retaliated against after she terminated a consensual relationship with a co-employee in October 1996. In addition to the allegations postdating the

affair, she is asserting that management at the Federal Bureau of Prisons (BOP), Management & Specialty Training Center (MSTC), knew or should have known that the co-employee was harassing her before she ended the relationship. (Doc. No. 53, Plaintiff's In fact,

Response to Defendant's Motion for Summary Judgment).

Plaintiff claims that she attempted to end the relationship as

Case 1:04-cv-00421-MSK-PAC

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early as May 1996, but was unable or afraid to do so.

(Id.,

Response to Defendant's Statement of Undisputed Fact ¶ 6). Therefore, Defendant asserts that the photographs are probative pursuant to Fed. R. Civ. P. 402 concerning whether Plaintiff continued to have a consensual relationship with the co-employee after March 1996. Two of the three photographs are extremely sexually explicit, as acknowledged by Plaintiff in her Motion in Limine. That, in turn, would indicate that Plaintiff was having what was in fact a somewhat torrid affair. Given that Plaintiff permitted

the photographs to be taken at all, even further suggests the degree of comfortableness and familiarity which she had with her co-employee. Defendant is not attempting to disgrace Plaintiff in the eyes of the jury or prejudice her unfairly. Rather, it is

Defendant's position that Plaintiff placed herself in this admittedly awkward situation by her own actions. The photographs

are relevant in that they demonstrate the type of relationship Plaintiff had with her co-employee and belie her assertions to the contrary. Therefore, they should not be excluded on the

basis that their probative value is outweighed by any possible prejudice pursuant to Fed. R. Evid. 403. For the foregoing reasons, Defendant respectfully requests the Court for an Order denying Plaintiff's Motion in Limine to

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Case 1:04-cv-00421-MSK-PAC

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Exclude Defendant's Exhibit 36. Respectfully submitted, DAVID C. IGLESIAS United States Attorney s/Phyllis A. Dow PHYLLIS A. DOW Special Attorney District of Colorado Assistant U.S. Attorney P.O. Box 607 Albuquerque, New Mexico 87103 Telephone: (505) 346-7274 FAX: (505) 346-7205 E-mail: [email protected] Attorney for Defendant I HEREBY CERTIFY that on February 9, 2006, I electronically filed with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Scott Frederick Reese [email protected] Elwyn F. Schaefer [email protected], and I hereby certify that I have mailed or served the document to the following participants via First Class Mail to: Scot L. Gulick Federal Bureau of Prisons Tower II, 8th Floor 400 State Avenue Kansas City, Kansas 66101-2421 s/Phyllis A. Dow PHYLLIS A. DOW Special Attorney District of Colorado Assistant U.S. Attorney P.O. Box 607 Albuquerque, New Mexico 87103 Telephone: (505) 346-7274 FAX: (505) 346-7205 E-mail: [email protected] Attorney for Defendant
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