Free Motion in Limine - District Court of Arizona - Arizona

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Mary H. Beard Admitted Pro Hac Vice FEDERAL EXPRESS CORPORATION 3620 Hacks Cross Road, Building B-3rd Floor Memphis, TN 38125 Telephone: (901) 434-8061 Facsimile: (901) 434-9279 Email: [email protected] FENNEMORE CRAIG, P.C. Lori A. Higuera (No. 017273) Alec R. Hillbo (No. 020185) 3003 North Central Avenue Suite 2600 Phoenix, AZ 85012-2913 Telephone: (602) 916-5000 Email: [email protected] Email: [email protected] Attorneys for Defendant Federal Express Corporation UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA SEAN L. HARGROW, Plaintiff, v. FEDERAL EXPRESS CORPORATION, a Delaware corporation; JOHN and JANE DOES IX; BLACK CORPORATION I-X; WHITE LIMITED LIABILITY COMPANIES I-X, Defendants. DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EVIDENCE REGARDING CLAIMS DISMISSED BY THE COURT ON THE ORDER ON THE MOTION FOR SUMMARY JUDGMENT No. 03-0642 PHX DGC

22 23 24 25 26 27 28 Plaintiff's counsel, and Plaintiff's witnesses of this evidence during trial. Defendant Federal Express Corporation ("FedEx"), by and through counsel, hereby submits its Motion in Limine to exclude evidence regarding claims dismissed by the Court on the Order on the Motion for Summary Judgment. FedEx respectfully requests that the Court issue an order in limine precluding any mention by Plaintiff,

Case 2:03-cv-00642-DGC

Document 120

Filed 11/02/2006

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In the Order Granting in Part and Denying in Part the Motion for Summary Judgment entered by this Court on February 2, 2006, the Court dismissed the following claims brought forth in Plaintiff's First Amended Complaint filed on April 30, 2004: all Title VII claims arising before November 21, 2001 (time-barred); all Americans With Disabilities Act ("ADA") claims (failure to produce evidence of substantial limitation in a major life activity): Employment Protection Act (failure to produce evidence of causal connection to workers' compensation claim); Title VII and Section 1981 hostile work environment claims (failure to produce evidence of severe or pervasive conduct); Title VII and Section 1981 disparate treatment claims (failure to show an adverse employment action or to produce evidence that similarly situated non-minority employees were treated more favorably) and the retaliation claim based on the written reprimands (first reprimand time-barred under Title VII and failure to establish a causal connection on first and second reprimands under Title VII and Section 1981). The Court denied summary judgment as to the retaliation claim under Title VII and Section 1981 based on Plaintiff's termination. As for the retaliation claim, the Court found that Plaintiff had engaged in protected activity by filing two internal EEO charges and three EEOC charges. The Court further noted that the two reprimands and Plaintiff's termination qualified as adverse employment action. Since the Court ruled that Plaintiff failed to show the causal connection between his reprimands and the discharge and the internal and EEOC complaints, any evidence regarding the reprimands and the internal and EEOC Complaints should be excluded from trial as irrelevant under Fed. R. Evid. 401 and

Case 2:03-cv-00642-DGC

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Filed 11/02/2006

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would be unfairly prejudicial, cause confusion of the issues, and be misleading to the jury under Fed. R. Evid. 403. The court dismissed these claims on summary judgment and such claims have been previously litigated by the parties and ruled upon by this Court. As such, any evidence regarding them at trial would be a waste of time for all parties involved, including the Court. As such, Defendant contends that the only adverse

employment action that is relevant to the remaining retaliation claim is Plaintiff's discharge and the only protected activity is his filing of the federal lawsuit on April 4, 2003 as this Court has ruled that Plaintiff has failed to show a causal link as to the other adverse employment actions and protected activity. DATED this 2th day of November, 2006. Respectfully submitted,

By: /s/ Mary H. Beard Mary H. Beard FEDERAL EXPRESS CORPORATION and Lori A. Higuera Alec R. Hillbo FENNEMORE CRAIG, P.C. Attorneys for Defendant Federal Express Corporation CERTIFICATE OF SERVICE I hereby certify that on February 16, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Mishka L. Marshall Marshall Law Group, P.C. 777 East Thomas Road, Suite 210 Phoenix, AZ 85014 /s/ Mary H. Beard Mary H. Beard
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